NL-12-125, Response to Request for Additional Information for Review of the Indian Point Nuclear Generating Unit Nos. 2 and 3, License Renewal Application Environmental Review - Compliance with Coastal Zone Management Act

Response to Request for Additional Information for Review of the Indian Point Nuclear Generating Unit Nos. 2 and 3, License Renewal Application Environmental Review - Compliance with Coastal Zone Management Act

ML12258A232
Person / Time
Site:	Indian Point
Issue date:	09/11/2012
From:	Dacimo F Entergy Nuclear Northeast
To:	Document Control Desk, Office of Nuclear Reactor Regulation
References
NL-12-125
Download: ML12258A232 (282)

Text

{{#Wiki_filter:Entergy Nuclear Northeast

      "
        'E nterg~y                                                            Indian Point Energy Center 450 Broadway, P.O. Box 249 GSB Buchanan, NY 10511-0249 Tel (914) 254-2055 Dacimo, Fred R.

VP License Renewal NL-12-125 September 11, 2012 U.S. Nuclear Regulatory Commission ATTN: Document Control Desk Washington, DC 20555-0001

SUBJECT:

Response to Request for Additional Information for Review of the Indian Point Nuclear Generating Unit Nos. 2 and 3, License Renewal Application Environmental Review - Compliance with Coastal Zone Management Act Indian Point Nuclear Generating Unit Nos. 2 & 3 Docket Nos. 50-247 and 50-286 License Nos. DPR-26 and DPR-64

Dear Sir or Madam:

By letter dated April 23, 2007, Entergy Nuclear Operations, Inc. (Entergy) submitted an application for renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3 (IP2 and IP3, respectively) operating licenses (Reference 1). The License Renewal Application (LRA), Appendix E, "Applicant's Environmental Report - Operating License Renewal Stage - Indian Point Energy Center," indicated that Entergy would submit a Coastal Management Program Consistency Certification to the New York State Department of State (NYSDOS). In addition, the NRC Staff, in the IP2 and IP3 Final Supplemental Environmental Impact Statement (FSEIS), issued in December 2010 (Reference 2), noted that "based on IP2 and 1P3's location within the State's Coastal Zone, license renewal of IP2 and IP3 will require a State coastal consistency certification." FSEIS at 2-142. By letter dated July 24, 2012 (NL-12-107) (Reference 3) Entergy provided updates of Entergy's status of compliance with the Coastal Zone Management Act and, to that extent, supplemented the LRA. Entergy reassessed the Act's requirements and has determined that IP2 and IP3 already have obtained the necessary consistency reviews from the State of New York and that license renewal will not result in coastal effects that are substantially different than the effects previously reviewed by NYSDOS and other state agencies with jurisdiction under state law to make those determinations. This letter with Enclosure 1 and Exhibits 1-9 provide the additional information requested by NRC letter dated August 13, 2012 (Reference .4) Request for Additional Information (RAI) for Review of the Indian Point Nuclear Generating Unit Nos. 2 and 3, License Renewal Application Environmental Review. 14z

NL-12-125 Dockets 50-247 and 50-286 Page 2 of 3 There are no new commitments identified in this submittal. If you have any questions, or require additional information, please contact Mr. Robert Walpole at 914-254-6710. I declare undernalo I of perjury that the foregoing is true and correct. Executed on Since 1GC~ FD/wg/cbr

REFERENCES:

1. Entergy Letter from Fred Dacimo to NRC Document Control Desk, "License Renewal.Application" (April 23, 2007) (NL-07-039)

2. NRC, Office of Nuclear Reactor Regulation, NUREG-1437, Supplement 38, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report (December 2010)

3. Entergy Letter from Fred Dacimo to NRC Document Control Desk, "Supplement to License Renewal Application - Compliance with Coastal Zone Management Act" dated July 24, 2012 (NL-12-107)

4. NRC letter dated August 13, 2012 "Request for Additional Information for review of the Indian Point Nuclear Generating Unit Nos. 2 and 3, License Renewal Application Environmental Review" ENCLOSURE: 1. Reply to NRC Request for Additional Information Regarding Supplement to Environmental Report EXHIBITS: 1. NYPA Negative Declaration

2. NYS Department of State Coastal Management Program Costal Assessment Form

3. NYS Department of State Consistency Project Review Sheet

4. State of New York Public Service Commission Conservation Final Supplemental Environmental Impact Statement (FSEIS)

5. State of New York Public Service Commission 2nd Order Authorizing Asset Transfer

6. NYS Department of Environmental Conservation Final Environmental Impact Statement (FEIS)

7. NYPA Coastal Assessment Forms (CAF) for SPDES

8. Consistency Process Flowchart

9. Letter dated April 3, 2001, "NYS Department of State, Division of Coastal Resources, Coastal Management Program Routine Program Changes,"

Mr. George R. Stafford to NRC Mr. Samuel J. Collins

NL-12-125 Dockets 50-247 and 50-286 Page 3 of 3 cc: Mr. William Dean, Regional Administrator, NRC Region 1 Mr. Douglas Pickett, Senior Project Manager, NRC NRR DORL Mr. John Daily, NRC Sr. Project Manager, Division of License Renewal Mr. Michael J. Wentzel, Environmental Project manager, IPEC License Renewal Mr. David Wrona, NRC Branch Chief, Engineering Review Branch I Mr. Sherwin E. Turk, NRC Office of General Counsel, Special Counsel NRC Resident Inspectors Office, Indian Point Ms. Bridget Frymire, NYS Department of Public Service Mr. Francis J. Murray, Jr., President and CEO, NYSERDA Mr. Cesar A. Perales, Secretary of State, NYSDOS

p NL-12-125 Docket Nos. 50-247 & 50-286 Page 1 of 16 ENCLOSURE 1 TO NL-12-125 Reply to NRC Request for Additional Information Regarding Supplement to Environmental Report ENTERGY NUCLEAR OPERATIONS, INC INDIAN POINT NUCLEAR GENERATING UNITS 2 AND 3 DOCKET NOS. 50-247 & 50-286

NL-12-125 Docket Nos. 50-247 & 50-286 Page 2 of 16 REPLY TO NRC REQUEST FOR ADDITIONAL INFORMATION REGARDING SUPPLEMENT TO ENVIRONMENTAL REPORT Entergy Nuclear Operations, Inc.'s ("Entergy") responses to the NRC Staff's Requests for Additional Information ("RAIs") are set forth below. To clearly distinguish between each RAI and Entergy's response, the RAIs are reprinted in italic type. RAI No. 1 On July 24, 2012, Entergy Nuclear Operations, Inc. (Entergy) subnitted a supplement to its applicationfor renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3 (1P2 and IP3, respectively) operating licenses. In its supplement, Entergy reevaluatedthe status of its compliance with the Coastal Zone ManagementAct (CZMA). In its reevaluation, Entergy concluded that IP2 and IP3 have already obtained the necessary consistency reviews from the State of New York and that license renewal will not result in coastal effects that are substantiallydifferent than the effects previously reviewed by New York State Departmentof State (NYSDOS) and other state agencies with jurisdiction under State law to make those determinations.Entergy based this conclusion, in part, on the assessment of coastal effects evaluated in the following four New York State documents: [1.] New York Power Authority's (NYPA) environmental review (including the State Environmental Quality Review Act (SEQRA) negative declaration,federal consistency certification, and state coastal assessment, if any) on the proposed sale of NYPA 's IP3 to Entergy (Mar. 31, 2000) [2.] New York State Department of Environmental Conservation's(NYSDEC) Coastal Assessment (Feb. 11, 2000) completed as a part of the State Pollutant Discharge Elimination System (SPDES)permit renewal applicationfor IP2 and IP3 (Mar. 2, 2000) [3.] New York Public Service Commission's (NYPSC) Final Supplemental Enviromnental Impact Statement (FSEIS), on the transfer of IP1 and IP2from ConsolidatedEdison to Entergy (Aug. 17, 2001) [4.] NYSDEC's Final EnvironmentalImpact Statement (FEIS) concerning applicationsto renew NY SPDES permits for Hudson River power plants, including IP2 and IP3 (June 25, 2003) New York's CoastalManagement Program indicates that the Departmentof State is responsiblefor administeringthe New York Coastal Management Programas well as coordinatingactivities essentialto its implementation because the Departmentof State is the designatedcoastal management agency of New York State (CMP PartH1, § H1-4 at 2 (1982)). For each of the four environmental reviews listed above, provide a copy of the application, if any, to the State of New York for a consistency determination,including any assessments of coastal effects. In addition, provide the State of New York's written response, if an)', reaching the consistency determination.In addition, if a State agency other than the Departmentof State provided a consistency determination

NL-12-125 Docket Nos. 50-247 & 50-286 Page 3 of 16 on the four environmental reviews cited above, state the basisfor the State agencies' authority.to make the consistency determination. Entergy's Response to RAI No. 1 All pertinent documents and other information relevant to RAI No. 1 are attached to, or contained in, Entergy's Motion for Declaratory Order that was filed before the ASLB on July 30, 2012, and Entergy incorporates those documents by reference.' For the NRC Staffs convenience, pertinent documents are attached hereto as Exhibits 1-7. These include the four documents listed above in the RAI, which Entergy refers to herein as "RAI Documents 1-4." Overview RAI No. 1 inquires about the multiple reviews by the State of New York of IP2 and IP3 under the New York Coastal Management Program ("CMP") since 2000. For each review, an authorized New York agency determined that the operations of IP2, IP3, or both were consistent with the enforceable policies set forth in the CMP. As explained below, a state license, permit, or other authorization-just like a federal license, permit, or authorization-to conduct an activity in the New York coastal zone requires a consistency review and determination. Even though the procedure varies somewhat depending on whether the review is necessary for issuance of a state authorization or for issuance of a federal authorization, the purpose and ultimate conclusion of the consistency review is the same in both contexts: to determine whether the proposed activity is consistent with the policies set forth in the CMP. Federal Coastal Zone Management Act regulations require the state "to uniformly and comprehensively apply the enforceable policies of the State's management program." 15 C.F.R. § 930.6(a). "Uniformity is required to ensure that States are not applying policies differently, or in a discriminatory way, among various entities for the same type of project for similar purposes, e.g., holding a Federal agency to a higher standard than a local government or private citizen." 65 Fed. Reg. 77,124, 77,128 (Dec. 8, 2000). Thus, because each consistency review conducted by New York must conform to the same standard of uniformity, each consistency review constitutes a "previous review" for purposes of 15 C.F.R. § 930.51 (b)(3). And, in turn, New York may conduct another consistency review for the License Renewal Application only if the continued operation of IP2 and IP3 "will cause an effect on any coastal use or resource substantially different than those originally reviewed by the State agency." Id. RAI No. 1 contains three discreet subparts. Entergy responds to each subpart in order below. In an effort to provide additional clarity, Entergy's response to subpart 3 sets forth a detailed explanation of the applicable consistency review procedures for federal authorizations and for state authorizations. Citations to "(Att. _)" in this Reply refer to the Attachments to Entergy's Motion for Declaratory Order.

NL-12-125 Docket Nos. 50-247 & 50-286 Page 4 of 16 Subpart 1 "For each of the four enviromnental reviews listed above, provide a cop)' of the application, if any, to the State of New York for a consistency determination, including ally assessments of coastal effects. As explained more fully in Entergy's response to Subpart 3, the applicable federal and state consistency review procedures do not contemplate a separate "application" for a consistency determination.2 Rather, for a federal license, permit, or other authorization, the applicant submits a consistency "certification" to both the federal agency and NYSDOS that triggers the State's consistency review and resulting state consistency determination: For a state license, permit, or other authorization, the New York CMP requires the state agency responsible for deciding whether to issue the authorization to conduct a consistency review and make a consistency determination as part of its environmental review under the State Environmental Quality Review Act ("SEQRA"). That obligation is triggered automatically by the application for the underlying authorization. As explained further below (pp. 5-6), the state's issuance of a state license, permit, or other authorization 4 may constitute a sufficient consistency determination for a later federal authorization. Subpart 2

                   "[P]rovide the State of New York's written response, if any, reaching the consistency determination.

RAI Documents 1-4 and other documents attached hereto contain the following written consistency5 determinations by authorized New York agencies that encompass the operations of IP2 and/or IP3: RAI Document 1 - NYPA environmental review on sale of IP3 to Entergy (Mar. 31, 2000) NYPA's consistency certification prepared in connection with its SEQRA Negative Declaration "constitute[s] a determination of consistency" for purposes of New York State's approval of the transfer of IP3 to Entergy.6 A copy of NYPA's consistency

-Entergy assumes that the RAI uses the term "consistency determination" generically to mean any decision by the State as to an activity's consistency with CMP policies, and Entergy uses that term in the same manner herein.

3 A copy of NYPA's consistency certification in connection with the NRC's consideration of the proposed transfer of IP3 to Entergy is contained in RAI Document 1, which comprises NYPA's own environmental review of the transfer. For convenience, we attach a copy hereto as Exhibit 1, at ETR000023. 4 See 15 C.F.R. § 930.6(c). 5Entergy's response to Subpart 3 provides important background information concerning these written consistency determinations and their basis. It also addresses unwritten consistency determinations by New York that must be inferred as a matter of law. 6 19 NYCRR § 600.4(b). In the circumstances. NYPA was both the applicant for state approval of the transfer and the "lead agency" charged with the environmental review, including CMP consistency review, in connection with such state approval. See, e.g., Exhibit 1, at ETR000030 (explaining that NYSDOS "had no objection to [NYPA] assuming the role of Lead Agency" for the review process); id. at ETR000027-29 (New York State Coastal Assessment Form prepared by NYPA in connection with its SEQRA Negative Declaration).

NL-12-125 Docket Nos. 50-247 & 50-286 Page 5 of 16 certification is contained in RAI Document I and is attached hereto as Exhibit 1, at ETR000023. RAI Document 2 - NYSDEC Coastal Assessment for SPDES permit renewals (Feb. 11, 2000)

       " The Coastal Assessment Form ("CAF") prepared by NYSDEC reflects a determination that renewal of the plants' SPDES permit will not "affect the achievement of [New York's] coastal policies." A copy is attached hereto as Exhibit 2.

In its oversight role for state agencies' consistency determinations, NYSDOS reviewed NYSDEC's CAF and determined that "No Comments [were] Necessary." A copy of the State Consistency Project Review Sheet that contains NYSDOS's determination is attached hereto as Exhibit 3. RAI Document 3 - NYPSC FSEIS on sale of IP1 and IP2 to Entergy (Aug. 17, 2001)

       " The FSEIS on the transfer of IPI and IP2 to Entergy contains the NYPSC's determination that "the proposed transfer of Indian Point Unit 1 and Indian Point Unit 2 to Entergy" is "consistent with applicable coastal zone policies set forth in 19 NYCRR § 600.5 [i.e., the New York coastal policies]." This consistency determination is attached hereto as Exhibit 4, at ETR000054.
       " The NYPSC subsequently issued an order that included a further written finding of consistency, which is attached hereto as Exhibit 5, at 11.

• These statements by the NYPSC "constitute[] a determination of consistency" for 7

purposes of the NYPSC's authorization of the transfer. RAI Document 4 - NYSDEC FEIS on the renewal of SPDES permits (June 25, 2003)

       " Affirming its earlier determination of February 11, 2000, NYSDEC determined in the FEIS that "[t]he SPDES permit renewals that are the subject of this [F]EIS will not result in any new effects on coastal zone policies" and incorporated the "[c]oastal zone consistency forms... contained in DEIS appendix IV-5." A copy of NYSDEC's determination is attached hereto as Exhibit 6, at 23-24.
       " Among the consistency forms NYSDEC referred to in the FEIS is a CAF prepared by NYPA on behalf of itself and ConEd, which were the original applicants for IP2 and IP3's SPDES permit renewals. That CAF reflects a determination that renewal of the plants' SPDES permits will not "affect the achievement of [New York's] coastal policies." A copy of the NYPA CAF is attached hereto as Exhibit 9, at ETROO0212-15.

• NYSDEC's conclusion in the FEIS and incorporation of NYPA's CAF by reference "constitutes a determination of consistency."T 7 19 NYCRR § 600.4(a).

S 1(.

NL-12-125 Docket Nos. 50-247 & 50-286 Page 6 of 16 Subpart 3

                   "[Ihf a State agency other than the Department of State provided a consistency determination on the four environmental reviews cited above, state the basis for the State agencies' authority to make the consistency determination.

The New York CMP authorizes the various State agencies to make the consistency determinations cited in the LRA supplement and discussed above. Under the CZMA and the New York CMP, New York State agencies conduct consistency reviews pursuant to two separate but related processes, one for activities requiring a federal authorization, and one for activities requiring a state authorization. Under both processes, the CMP requires the applicable State agency to determine whether the activity is consistent with the policies of the CMP. As described in greater detail below, 9 one of these processes is prescribed by the CZMA and federal regulations, and applies to activities affecting the state's coastal zone that require a federal license, permit, or other authorization. The other consistency review process is prescribed by the New York Coastal Management Program ("CMP") and state law and regulations, and applies to all activities located within the state's coastal zone that require a state license, permit, or other authorization. Both processes require the responsible New York State agency to review an activity and determine whether it is consistent with the policies set forth in the CMP. For an activity requiring a state authorization, the State agency with responsibility for issuing the authorization also has responsibility for conducting the consistency review. For an activity requiring a federal authorization, the CMP provides that consistency reviews are ordinarily administered by NYSDOS, but federal regulations allow the designated state agency (here, NYSDOS) to delegate that responsibility in certain instances and also deem reviews conducted by other state agencies in connection with state authorizations sufficient for a later federal authorization.' 0 Though distinguishable by the specific steps in each consistency review process, the objective of both the federal and New York State processes is to determine whether a proposed activity is consistent with the policies of the CMP. Federal regulations require New York to apply the same consistency review standard to any state authorizations reviewed under the CMP as it applies to federal authorizations reviewed under the CMP." Thus, a consistency review of an activity in connection with a required New York State authorization is, in substance, no different from a consistency review of that same activity in connection with a required federal authorization. As shown below, federal regulations deem consistency reviews for state permits sufficient for federal purposes as well. 12 Accordingly, Entergy's position is that a consistency review of an activity in either context constitutes a "previous review" for purposes of 15 C.F.R. § 930.5 1(b)(3). 9See also Flowchart of State and Federal Consistency Review Processes, attached hereto as Exhibit 8, which Entergy prepared for the NRC Staff's convenience.

'°See 15 C.F.R. §§ 930.6(c), 930.11(o).

"See 15 C.F.R. § 930.6(a): 65 Fed. Reg. 77,124, 77,128 (Dec. 8, 2000). 12 See, e.g., 15 C.F.R. § 930.6tc).

NL-12-125 Docket Nos. 50-247 & 50-286 Page 7 of 16 A. Consistency Review Process for Activities Requiring a Federal Authorization Under the CZMA and its implementing regulations, an applicant for a federal license, permit, or other authorization to conduct an activity affecting a state's coastal zone must, with certain exceptions, certify to the federal agency that "[t]he proposed activity complies with the enforceable policies of [the State's] approved [coastal] management program and will be conducted in a manner consistent with such program," and "furnish to the State agency a copy of the certification and necessary data and information."' 13 In this context, the "State agency" is "the agency of the State government designated pursuant to section 306(d)(6) of the Act"--.vhich, in New York, is NYSDOS-"or a single designee State agency appointed by the 306(d)(6) State agency."'14 Upon receipt of the applicant's consistency certification and necessary data and information, the State agency has six months in which to review the materials and make its consistency determination by either concurring with or objecting to the applicant's certification.15 Under the federal statute and regulations, the State agency's concurrence may take one of three forms. First, the agency may expressly concur with the certification. Second, "[i]f described in a State's management program, the issuance... of relevant State permits can constitute the State agency's consistency concurrence ... if'--as is the case in New York-"the State agency ensures that the State permitting agencies ... review individual projects to ensure consistency with all applicable State management program policies . . . ." 6 Third, the State agency's concurrence "shall be conclusively presumed" if it fails to issue a concurrence or objection within the prescribed six-month period.' 7 If, however, the State agency timely objects that the proposed activity is not consistent with the enforceable policies of the State's coastal management program (and if the Secretary of Commerce does not override the State's objection), then 8 the federal licensing agency may not grant the requested license, permit, or other authorization. ' B. Consistency Review Process for Activities Requiring a State Authorization "The basic thrust of New York State's Coastal Management Program is to have State agencies carry out their respective programs consistent with the policies contained in [the CMP]."'19 Therefore, L 15 C.F.R. § 930.57(a). New York provides a form certification as part of its Federal Consistency Assessment Form ("FCAF"). New York requires an applicant to complete and submit an FCAF as one of the items comprising the necessary data and information." CMP pt. II, § 9, at 12. An example of an FCAF containing a federal consistency certification regarding 1P3 is attached hereto as Exhibit I. at ETR000022-23. 'a 15 C.F.R. § 930.11(o) (emphasis added). 1516 U.S.C. § 1456(c)(3)(a); 15 C.F.R. §§ 930.60, .62-.63. 6 15 C.F.R. § 930.6(c). Moreover, "if all management program enfor6eable policies are contained in State permit standards, then usually the issuance of the relevant State permit(s) will be sufficient for determining consistency." 65 Fed. Reg. 77124, 77129 (Dec. 8, 2000) (elaborating on 15 C.F.R. § 930.60(c)).

   16 U.S.C. § 1456(c)(3)(A).

IId.; 15 C.F.R. § 930.64. Just as the issuance of State permits can constitute a concurrence, the "denial of relevant State permits can constitute the State agency's consistency ... objection." 15 C.F.R. § 930.60(c). Such a denial would not, however, include a non-final staff denial. 19 CMP pt. II, § 4, at 7; see also id. pt. I, at I ("The [CMP] ... describ[es] ... the forty-four coastal policies with which all State agency actions must be consistent."); id. at 2 (explaining that under the CMP, "[ftorty-four coastal management policies will apply to State agency decisions," and that "[a]ll activities involving a State permit, funding, or other action will be undertaken in a manner consistent with coastal policies"); id. pt. II, § 6, at I ("In all cases State agencies are

NL-12-125 Docket Nos. 50-247 & 50-286 Page 8 of 16 under the New York CMP and related state laws and regulations, a state license, permit, or other approval to conduct an activity affecting New York's coastal zone must likewise receive a determination of consistency with the CMP policies from an authorized State agency.2 0 As a prerequisite to the issuance of any such approval, the issuing 2 New York agency is required first to determine that the activity is consistent with CMP policies. ' The CMP ensures such consistency through the procedures of SEQRA, N.Y. Envtl. Conserv. Law Art. 8, and regulations that were promulgated pursuant to the CMP in 1982.22 The issuing New York agency must first "complet[e] a coastal assessment form (CAF) in a form prescribed by [NYSDOS].... Where any question on the CAF is answered yes, a brief and precise description of the nature and extent of the action shall be provided on the CAF, and a copy of the CAF forwarded to [NYSDOS] ... unless such action[] involve[s] Federal review, funding, or approval."2 3 Even where a CAF is submitted to NYSDOS, however, NYSDOS maintains only a monitoring and advisory role-it "is not authorized to override the [consistency] decisions of its sister agencies."2 4 The agency then makes a determination whether the proposed activity is consistent with CMP policies as part of its review under SEQRA. 25 Much like the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., SEQRA requires the state agency to prepare an Environmental Impact Statement ("EIS") for proposed actions that may have a significant effect on the environment, and a Negative Declaration for those that will not. In the case of a Negative Declaration, state regulations require the agency to "file with [NYSDOS] a certification that such action will not substantially hinder the achievement of any of the coastal policies," or "[i]f the action will substantially hinder the achievement of any policy, the agency shall instead certify that [certain alternative] requirements are satisfied."'26 If an EIS is required, the EIS must confirm "the action's consistency ... with the applicable coastal policies"; the state agency may not issue the permit or otherwise approve the action without "a written finding that the action is consistent with required to adhere to each [of the CMP's 44] policy statement[s] as much as is legally and physically possible."); id. at 3 ("In applying these policies to a given action, all policies relevant to the action are to be adhered to."). 20 See CMP pt. II, § 4, at 3-4, 7-9; see also N.Y. Exec. Law § 919(l) ("Actions directly undertaken by state agencies within the coastal area ... shall be consistent with the coastal area policies of this article."). 21 See, e.g., CMP pt. II, § 4, at 4 ("The State agency having jurisdiction over a proposed action is responsible for determining the consistency of that action with the coastal policies). 22 See CMP pt. II, § 4, at 7-9 ("[T]he procedures of [SEQRA] will insure that all State agency actions, of whatever type, will be consistent with [CMP] policies."); id. at 8-9 (describing SEQRA and NYSDOS regulations that would be-and, since 1982, have been-promulgated to implement the CMP): see also 19 NYCRR § 600. 1(d) ("[I]t was the Legislature's intention that review by State agencies required pursuant to article 42 of the Executive Law, to determine the consistency of proposed actions with the policies of article 42 ... be coordinated with and made a part of each agency's existing procedures, including reviews conducted under [SEQRA]. Accordingly, in compliance with article 42, this Part provides a framework which is compatible with and capable of coordination with a State agency's existing review responsibilities under [SEQRA]."). 23 19 NYCRR § 600.4. Examples of CAFs regarding IP2 and/or IP3 are attached hereto as Exhibit 1, at ETR000027-28; Exhibit 2, at 1-2; and Exhibit 7. at ETR000212-14. 24 See CMP pt. II, § 4, at 3, 9. 25 19 NYCRR § 600.4(a), (b). 26 19 NYCRR § 600.4(b).

NL-12-125 Docket Nos. 50-247 & 50-286 Page 9 of 16 applicable policies." 27 In either case, compliance with these requirements "constitutes a determination of consistency.28 Pursuant to these state regulations, a "determination of consistency" with New York's coastal policies is a prerequisite for every state agency approval or other action in the coastal zone.29 Thus, the CMP and New York regulations authorized, and in fact required, NYPA, NYPSC, and NYSDEC to make their respective consistency determinations with respect to IP2 and IP3 as a prerequisite to their issuance of the corresponding state permits or other approvals. 30 The CMP expressly provides that the "[t]he State agency having jurisdiction over a proposed action is responsible for determining the consistency of that action with the coastal policies." 3' The CMP's implementing regulations codify these responsibilities and set forth specific procedures for State agencies3 2 to make their consistency determinations as part of the SEQRA reviews of proposed actions.- Moreover, the CMP specifically provides that NYSDEC has the major responsibility for protecting the natural resources of the coastal area .... In its permitting role, DEC reviews most activities that have the potential to impact coastal resources. Those with the potential for significant impact are thoroughly reviewed in connection with the SEQRA process and can be approved only after DEC has found that the activity will be consistent with the policies of the coastal management program. This review will ensure comprehensive implementation of the program with respect to a wide variety of activities. 3 The CMP also lists NYPA and the NYPSC, among other state agencies, as having responsibility34for assuring activities within their jurisdiction are consistent with the policies in New York's CMP. C. Previous Consistency Reviews of IP2 and IP3 The prohibition against further consistency review in connection with certain license renewals contained in 15 C.F.R. § 930.5 l(b)(3) asks whether the activity has been "previously reviewed." Here, the "activity" at issue is the ongoing operation of IP2 and IP3. New York has reviewed the operations of IP2 and IP3 for consistency with CMP policies on multiple occasions. 27 19 NYCRR § 600.4(a); 6 NYCRR §§ 617.9(b)(5)(vi), 617.9(b)(8)7 617.1 l(e). An example of an EIS that contains such a consistency determination regarding 1P2 is attached hereto as Exhibit 4, at ETROO0051-121. 28 19 NYCRR § 600.4(a)-(b). 29 19 NYCRR § 600.4. 30 See CMP pt. II, § 4, at 3-4, 7-9; 19 NYCRR § 600.4(a), (b). 3' CMP pt. I1, § 4, at 4. 32 19 NYCRR § 600.4(a), (b). 33 Id. at 3 (emphasis added). 31 Id. at 3-4. Although NYSDOS maintains a monitoring and advisory role, it "is not authorized to override the decisions of its sister agencies." Id. at 3, 9.

NL-12-125 Docket Nos. 50-247 & 50-286 Page 10 of 16 First,the documents containing the consistency determinations discussed in Entergy's response to Subpart 2 reflect consistency reviews that encompassed IP2 and IP3's operations: NYPA reviewed IP3's operation for consistency as part of its SEQRA review in connection with its consideration, for state approval purposes, of the proposed transfer. The consistency review by NYPA as the authorized state agency is sufficient, as a review for a state authorization, to serve as a "previous" consistency review for a future federal authorization. Moreover, NYPA also completed the Federal Coastal Assessment Form that is attached as Exhibit 1, at ETR000022-26, in which NYPA certified consistency. Because NYPA prepared a FCAF containing a federal consistency certification, and the NRC in fact approved the transfer, NYSDOS would be deemed to have reviewed and concurred with NYPA's certification, such as by express concurrence, by delegation of review responsibility to NYPA pursuant to 15 C.F.R.

             § 930.11(o) and/or § 930.6(c), or by conclusive presumption through the failure to object within six months.
         " The NYPSC reviewed IP2's operation for consistency as part of its SEQRA review in connection with the state's consideration of the proposed transfer of IP2 from Con Ed to Entergy.36 Again, NYPSC's review serves as a "previous" review for a future federal authorization. Moreover, just as with the transfer of IP3, the transfer of IP2 required NRC approval. NYSDOS would be deemed to have reviewed and concurred with the activity's consistency with the CMP under the federal consistency procedure.
         " NYSDEC twice reviewed IP2 and IP3's operations for consistency as part of its SEQRA review in connection with the application for renewal of their State Pollutant Discharge Elimination System (SPDES) permit.37 Second, New York has reviewed various activities at Indian Point for consistency with the CMP on numerous occasions in connection with the issuance of state permits. Since Entergy acquired IP3 in 2000, NYSDEC and other state agencies have issued 39 permits to IP2 and IP3. At least 21 of these permits are for IP2, 10 are for IP3, and the rest are applicable to the Indian Point facilities generally.

As a matter of New York law, each of these permits required the issuing state agency to review the underlying activity for consistency with the CMP.38 Thus, each permit represents a consistency review (and determination) by an authorized State agency, under NYSDOS's supervision, of those aspects of plant operations relevant to that permit. It is worth noting that, while federal CZMA regulations prohibit duplicative consistency reviews for federal license renewals, 39 New York regulations do not prohibit duplicative review for State permits, including permit renewals. Third, to achieve approval of the CMP by NOAA, NYSDOS was required to show that the CMP "provides for adequate consideration of the national interest involved in ... the siting of facilities 35 See Exhibit 1, at ETR000022-29. 3, See Exhibit 4, at ETR000054; Exhibit 5, at 11. 37 See Exhibit 2, at 1-2; Exhibit 6, at 23-24. 38 See CMP pt. IIL § 4, at 3-4. 7-9; N.Y. Exec. Law § 919(1)(a)-(b). '9 See 15 C.F.R. § 930.51 (b)(3).

NL-12-125 Docket Nos. 50-247 & 50-286 Page 11 of 16 such as energy facilities which are of greater than local significance.* 4 ° Since its adoption in 1982 through the most recent CMP routine program changes in 2006, NYSDOS has made this showing, in part, by referring in the CMP to the ongoing operations of nuclear plants, including IP2 and IP3, within the coastal zone: Many energy facilities are already situated in the State's coastal area, including steam-electric generating plants, transmission lines, oil storage tanks and LNG facilities. The Program's policies on energy are in accord with existing State laws and plans which address energy needs and environmental quality in a comprehensive manner. The State has demonstrated its recognition of the national interest in energy facilities by the number and scope of facilities already located in or planned for New York's 41 coastal area .... [including] nuclear - 5 units. Inasmuch as IP2 and EP3 are two of the five identified nuclear generating units,4 2 NYSDOS expressly relied on the continued operation of [P2 and IP3 to satisfy the State's obligations under the CZMA. If the operations of IP2 and IP3 were inconsistent with the CMP, then NYSDOS could not have relied on them to demonstrate New York's "recognition of the national interest in energy facilities" in order to meet CZMA regulatory requirements. RAI No. 2 CZMA regulations in 15 CFR 930.51 describe situations whereby the renewal of a federal license or permitfor an activioy that has previously been reviewed for consistency with the state's coastal managementprogram does not require a subsequent consistency deternmination unless the proposed action will cause an effect on any coastal use or resource substantially different than those previously' reviewed by the State agency. Provide the basis for Entergy's determination that license renewal will not result in coastal effects substantially different from the effects considered in each of the four environmental reviews cited above. In the discussion, consider the following:

• Are there any aspects of lP2 and IP3 operations during the period of extended operation (PEO) that were not evaluated in any of the four environmental reviews cited above?

40 16 U.S.C. § 1455(d)(8); see also id. § 1455(d)(2)(H); 15 C.F.R. § 923.52 (detailing the requirements for establishing that the national interest in energy facilities is met in state plans); Energy and Government Facility Siting, NOAA, http:/coastalmanagement.noaa.gov/enegov.html (Att. 20) ("Meeting energy needs and increasing the United States' energy independence are two of the highest priority national issues of the [CZMA]."); Connecticut v. Dep't of Commerce, No. 3:04-cv-1271, 2007 WL 2349894, at *8 (D. Conn. Aug. 17, 2007) ("According to the NOAA regulations, the siting of coastal dependent energy facilities inherently has economic consequences beyond the immediate locality where the facility is located, that is, involves a significant national interest."). 41 CMP pt. II, § 9. at 3. 42 There are currently six nuclear generating units in New York. It is likely that NYSDOS failed to add Nine Mile Point Nuclear Station's most recent reactor unit, which was first licensed in 1987, in its subsequent routine changes to the

CMP,

NL-12-125 Docket Nos. 50-247 & 50-286 Page 12 of 16

• Describe any changes to the coastal environment since the previous consistency determinations were made. Changes to the coastalenvironment may include, without limitation, newly designatedsignificant coastalfish and wildlife habitats,regionally designated naturalareas, endangeredspecies, or any other coastal resources and concerns described in the New York Coastal Management Program.

    "   Describe any changes to the New York CoastalManagement Programsince the previous consistency determinations were made that may result in the identification of new coastal effects, or a new understandingof coastal effects, resultingfrom operation of lP2 and IP3 during the PEO.

Entergy's Response to RAI No. 2 An application for a federal license that is specifically identified in a state's coastalmanagement program must undergo a consistency review by the relevant state authority (or authorities) before that license can be issued by a federal agency. To avoid duplicative consistency reviews, the federal regulations treat renewals of federal licenses, such as this one, differently. Under CZMA consistency regulations, the consistency review process is applicable to license renewals in only three limited circumstances: (1) where there has been no prior review of the licensed activity; (2) where there have been changes to the state CMP after the prior state review, but prior to the renewal application; and (3) where renewal of the license will cause a new effect on the coastal 43 zone that is substantially different than what was originally reviewed by the State agency. As explained in Indian Point's License Renewal Application Supplement, no additional consistency review is required for renewal of the IP2 and IP3 operating licenses because both plants have been previously reviewed by the state and determined to be consistent with the CMP on several occasions. There have been only routine program changes to the CMP between the time of New York's consistency review involving the transfer of IP3 in 2000 and the submission of Entergy's renewal application in 2007, and these changes resulted in immaterial modifications to the CMP. Entergy also is not aware of any changes to the environment since the previous consistency determinations were made that bear upon IP2's or IP3's consistency with the CMP. CZMA regulations require NYSDOS to notify the NRC of changes to the environment it contends will cause the operations of IP2 and IP3 to have coastal effects that are "no longer consistent with the [CMP]. 44 NYSDOS has issued no such notifications. Finally, as shown in Mr. Dacimo's declaration attached to Entergy's Motion for Declaratory Order, the operation of the plants has not changed significantly and is not anticipated to change during the license renewal period.45 Accordingly, IP2 and IP3 will not cause new coastal zone effects during the license renewal period. 41 See 15 C.F.R. § 930.51 (b)(I)-(3). 41 15 C.F.R. § 930.65(a), (b)(l). 45 See Dacimo Deci. 1¶ 8-1 1 (Att. 16).

NL-12-125 Docket Nos. 50-247 & 50-286 Page 13 of 16 A. Evaluation of IP2 and 1P3 Operations As explained above, the operations of IP3 were reviewed for the transfer of the unit from NYPA to Entergy in 2000.46 The NYPSC also conducted a comprehensive review of IP2 operations for the transfer of the unit to Entergy in 2001.47 Indian Point operations related to the SPDES permit application were reviewed by NYSDEC in 2000 and re-affirmed by NYSDEC in 2003.48 Although not identified in the NRC's RAI, various other operations of IP2 and IP3 were reviewed by New York in connection with permit activities during the initial NRC license period, and as recently as last year. Accordingly, the operations of IP2 and IP3 have been subject to extensive reviews by New York for consistency with the policies of the CMP. [P2 and IP3 have undergone only two modifications since they were transferred by ConEd and New York, respectively, to Entergy over a decade ago: (1) the buildiAg of the Generation Support Building (GSB) and (2) the construction of an Independent Spent Fuel Storage Installation (ISFSI). For each modification, Entergy received approvals or authorizations required by state law. 49 These modifications do not change the operations of IP2 or IP3 or otherwise result in any substantially different coastal effects. Therefore, they are immaterial to Entergy's License Renewal Application Supplement. First,in 2004 Entergy replaced nearly 100 trailers and other temporary structures for administrative staff with a GSB. 50 The GSB is four stories tall and is located east of the Hudson River behind several pre-existing structures, including the 334-foot tall superheater stack for IP 1, the 250-foot tall reactor containment structures, and the 134-foot tall IP2 and IP3 turbine buildings. 5' The GSB received its Certificate of Occupancy after unanimous approval by the Village of Buchanan Planning Board, which served as the Lead Agency for the structure's review under SEQRA.52 This review specifically analyzed the structure's storm 53 water management, traffic, and visual impacts before approval of its Certificate of Occupancy. Second, Entergy also constructed the ISFSI- a 100 foot wide by 200 foot long pad located at the north end of IP2 and IP3.54 it received its Certificate of Occupancy from the Village of Buchanan 46 See Exhibit 1, at ETR000023 (certifying that "[t]he proposed activity complies with New York State's approved Coastal Management Program ... and will be conducted in a manner consistent with such program."). 47 See Exhibit 4. at ETR000054: Exhibit 5, at 11. 48 See Exhibit 2, at 1-2; Exhibit 6, at 23-24. 49 Dacimo Decl. TT 14, 16 (Att. 16). 50 ' d.11 14-15. 51Id. ¶ 14; see also NRC FSEIS, at 2-2 to 2-5, 2-7 fig. 2-4 (Exh. NYSOOI33A). Removal of the superheater stack is near completion. 52 See Village of Buchanan Resolution of Preliminary and Final Site Plan Approval (June 20, 2002) (Att. 26); see also Village of Buchanan Certificates of Occupancy Nos. 1685 (Oct. 24, 2003), 1700 (Jan. 9, 2004), and 1706 (Feb. 24, 2004) (Att. 2.7). 51 See id. 54 Dacimo Decl. T 16 (Att. 16): see also NRC FEIS, at 2-8 (Exh. NYSOOI33A).

NL-12-125 Docket Nos. 50-247 & 50-286 Page 14 of 16 in March 2008.55 Although this construction was finalized in 2008, its construction was anticipated by the NYSPSC as part of the FSEIS when IP2 was sold to Entergy by ConEd.56 The NYPSC found the sale of IP2, including the plan to construct the ISFSI, to be consistent with the New York coastal policies and the Coastal Management Program.57 Neither addition to the property surrounding 1P2 and IP3 qualifies as a substantial modification to the operation of either nuclear generating unit. Entergy also does not intend to make substantial modifications to IP2 or 1P3 during the renewal period besides changes that may be necessary to comply with future regulatory requirements. 58 Accordingly, there is no evidence that the modifications described above or the continued operation of 1P2 and IP3 will result in substantially different coastal effects during the license renewal period. B. Changes to the Coastal Environment Even if they were relevant to the LRA supplement, there have been no material changes to the coastal environment since the previous consistency determinations. Section 930.65 of the CZMA consistency regulations requires NYSDOS to monitor and notify the NRC of any license activity it claims "is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result, is no longer consistent with the [CMP]." 59 If NYSDOS determined that a change to the environment alone would cause substantially different coastal effects by 1P2 and IP3, it would have been required to notify the NRC and, presumably, Entergy. Entergy is not aware of any circumstances in which NYSDOS has claimed that a change to the environment, if any, caused the operations of IP2 or IP3 to be "no longer consistent with the [CMP]."6 0 Nevertheless, any changes to the coastal environment since IP3 was previously reviewed in 2000 (or since any subsequent review) would not trigger further consistency review by New York under 55 See Village of Buchanan Certificates of Occupancy No. 1879 (Mar. 2008) (Att. 28). Village of Buchanan General Code (Environmental Review Procedures) § 83-5 requires "[a]ll agencies, boards, departments, offices, other bodies or officers of the Village of Buchanan [to] comply with SEQR. Part 617 ... to the extent applicable, prior to carrying out, approving or funding any action." 56 See Exhibit 4, at ETR000098-99 ("Con Edison has initiated engineering and licensing activities to enable it to build an on-Site ISFSI .... [Entergy] reported that it expects to continue Con Edison's ISFSI initiatives."); see also Dacimo Decl. ¶ 16 (Att. 16). 57 See Exhibit 4, at ETR000054. Entergy does anticipate that it will likely in the future replace IP2 and IP3's reactor vessel heads and control rod drive mechanisms ("CRDMs") during the renewal period. See Dacimo Decl. ¶ 19 (Att. 16); NRC FSEIS, at 3-2 to 3-3 (Exh. NYS00133B). After evaluating the likely environmental impacts of the replacement activities, id. at 3-4 to 3-13, NRC Staff concluded that replacement of the reactor vessel heads and CRDMs during the renewal term "would have SMALL or no [environmental] impacts," especially in light of "the activities' limited scope and duration compared to the refurbishment programs identified in the GELS," id. at 3-13. The impacts that might potentially affect the coastal zone within the scope of CMP policies are variously described as "none,"

"negligible," "of small significance," and even "reduced" below usual operating levels. Id. at 3-5 to 3-6.

58 See Dacimo Decl. IT 17-19 (Att. 16). '9 15 C.F.R. § 930.65(a), (b)(1). 60 Id.

NL-12-125 Docket Nos. 50-247 & 50-286 Page 15 of 16 the CZMA's consistency regulations. 6 1 Section 930.5 1(b)(3) of the CZMA consistency regulations preclude further review unless the activity subject to the license renewal "will cause an effect on a 62 coastal use or resource substantially different than those originally reviewed by the State agency." When Congress passed the CZMA, it focused CZMA review on only new activity, not previously reviewed activity. - Consistent with this consideration, and to avoid repetitive and "unnecessary state agency review," the CZMA regulations promulgated by NOAA limit "further review to cases where ... the activio,will be modified substantially causing new coastal zone effects.' 64 It is noteworthy that the focus of the CZMA statute and Section 930.5 1(b)(3) of the CZMA's consistency regulations regarding previous reviews is on substantial changes to the activity, rather than changes to the coastal resource. This is in furtherance of the CZMA's objective to avoid redundant or duplicative reviews. 65 If status quo operations could be reviewed based upon changes to the coastal resource arising from the cumulative effects of activities in the coastal zone or external circumstances, the previous review exemption would serve no purpose. Because the operations at IP2 and IP3 have not changed materially since the 2000 review,(and subsequent reviews) and will not change during the PEO, both units have satisfied the CZMA consistency requirements, and further consistency review by New York is unnecessary. In short, having approved a project as consistent with its CMP, a State may not approve other unrelated activities in the coastal zone and then object to the original project on the ground that the coastal environment has changed. C. Changes to the New York Coastal Management Program Although New York adopted routine program changes to the CMP in 2001 and in 2006, there have been no material modifications to the policies of the CMP that bear upon the operation of IP2 and IP3 during the license renewal period.66 As shown, only program changes occurring after the prior review, but before the license renewal application, are sufficient to require another consistency review. 67 Thus, a CMP change such as the fisheries habitat modification currently under consideration by New York would not bear upon the License Renewal Application Supplement because the State proposed it only recently, and it will become effective (if at all) only after the License Renewal Application was filed in 2007. 61 New York has published notice that it is seeking to implement a change to the CMP that would designate areas of the coastal zone around Indian Point as the habitat for certain fish species. Although New York has classified this potential modification a "routine program change," the substantive modification of the CMP represents an amendment that must be adopted by NOAA only after appropriate procedurals are followed. The change has not been approved by NOAA and, therefore, is not a component of the current CMP. 62 15 C.F.R. § 930.5 1(b)(3) (emphasis added). 63 See S. Rep. No. 92-753 (1972). reprinted in 1972 U.S.C.C.A.N. 4776, 4793-94 (emphasis added). 64 44 Fed. Reg. 37,142, 37,150 (June 25, 1979) (emphasis added). 65 See 15 C.F.R. § 930.1 (c) (explaining that a core objective of the consistency regulations is to "provide flexible procedures which ... minimize duplicative effort and unnecessary delay, while making certain that the objectives of the federal consistency requirement of the [CZMA] are satisfied.") (emphasis added). 66 Although New York made modifications to CMP policies 2, 3. 4, 11, 20, 27, 34. and 35 in 2001, none were substantial changes. See Letter to NRC Director Samuel J. Collins from NYSDOS Division of Coastal Resources Director George R. Stafford dated April 3, 2001 (identifying minor changes to CMP) (excerpt attached hereto as Exhibit 9). 61 See 15 C.F.R. § 930.5 1(b)(2).

NL-12-125 Docket Nos. 50-247 & 50-286 Page 16 of 16 RAI No. 3 Provide the basisfor the statement, in section 9.3 of Entergy's Environmentalreport, as revised (Enclosure] to NL-12-107), that "Entergy now believes that the New York CoastalManagement Plan also exempts both plantsfrom further consistency review." Entergy's Response to RAI No. 3 The CMP states that "projects for which a substantial amount of time, money and effort have been expended.., will not be subject to New York State's Coastal Management Program and therefore will not be subject to review pursuant to the Federal consistency procedures" of the CZMA. 68 The CMP further provides that two types of projects are covered by this exemption: (1) projects "identified as grandfathered" under SEQRA at the time of SEQRA's enactment in 1976, and (2) projects which have been the subject of a "final Environmental Impact Statement" prior to the "effective date" of the NYSDOS regulations at 19 NYCRR Part 600, i.e., September 28, 1982.69 IP2 began operating in 1974, and IP3 commenced operations in 1976, pursuant to licenses issued by the United States Atomic Energy Commission on September 28, 1972, and the NRC on December 12, 1975, respectively. IP2 and 1P3 also were issued permits by various New York agencies and localities before September 1, 1976. IP2 and IP3 were, therefore, grandfathered under SEQRA at the time of its enactment in 1976. For this reason, they are exempt from consistency review under clause one of the CMP's grandfathering provision. IP2 and IP3 also were the subject of final federal Environmental Impact Statements in 1972 and 1975, respectively, and are exempted from further CMP review pursuant to clause two of the CMP's grandfathering provision. New York State, which owned IP3 for approximately 25 years, has never contended that either IP2 or IP3 required a consistency review merely to remain in operation. In effect, New York recognizes that the facilities have been grandfathered since the CMP became effective in 1982. It is important to note that Entergy is not seeking from the Staff or ASLB a determination whether the grandfathering provision obviates furthers consistency review. That would likely be an issue of state law for NYSDOS and, ultimately the New York courts to decide. 68 CMP pt. II, § 9, at I. 69 m.

EXHIBIT 1 ,..;~.i NEGATIVE DECLARATION Notice of Delerminaltion of Non-Significance Project Number Not Applicable Date March 31, 2000 This notice is issued pursuant to Part 617 of the knptementing regulations pertaining to Article 8 (State Environmental Quality Review Act) of the Environmental Conservation Law. The New York Power Authority (NYPA or the Authority) .as lead agency. has determined that the proposed action descried below wig not have a significant effect on the environment and a Draft Environmental Impact Statement will not be prepared. Name of Action: The proposed action is the sale of NYPA's Indian Point 3 (IP3)

     & James A. FitzPatrick(JAF) Nuclear Power Plants (NPPs)to indirectly wholly-owned subsidiaries of the Entergy Corporation of New Orleans.

SEQR Status: Type I Unlisted [] Conditioned Negative Declaration: [] Yes 2 No Description ofAction: The proposed action is the sale of NYPA's IP3 & JAF NPPs. The sale includes the land, structures,equipment, personnel

      & agreements on anciliary services & power supply.                                             Entergy will purchase the NPPs subject to all                           existing permits & approvals.

Entergy will acquire IP3 & JAF in compliance with all applicable laws & regulations. The NPPs, once under new ownership, will be required to continue to comply with these & any other applicable laws & regulations. The State's economic, social & environmental interests will, therefore, be safeguarded. As the sale will return lands not subject to real property taxation to the tax base, economic benefits may in fact result. NYPA selected Entergy for its experience and ability to run the NPPs at the levels the Authority has currently attained. Entergy will supply power from the NPPs to the Authority under a power agreement that mimics current conditions. If power from the NPPs is unavailable, NYPA will go to the power market, as it currently does. Therefore, the sale is not expected to impact either the local or system-wide power supply. Location: (Include street address and the name of the municipality/counly. A location map of appropriate scale Is also recommended.) Indian Point 3 Nuclear Power Plant, B leakley Avenue & Broadway, Buchanan, New York 10511 and James A. FitzPatrick Nuclear Power Plant, 268 Lake Road East, Lycoming, New York 13093 CIt ETROO0002

SEOR Negative Declaration Page 2 .-easons Supporting This Determination: (See 617.6(g) for requirements of this determination: see 617.6{h) for Conditioned Negative Oeclarat.on) The sale, when completed, will involve the transfer to and assumption by Entergy of the ownership and operation of IP3 & JAF in the same manner as provided for in the state & federal licenses, permits, & approvals currently in effect for these facilities. NYPA intends to relinquish all land, buildings, equipment, personnel, licenses, permits & approvals associated with these facilities. Entergy can draw upon its extensive operational experience and sound financial resources, and is committed to the continuation of current operations without substantial change. The sale will not result in any physical change to either site. As set forth in the Environmental Assessment & Addendum prepared by NYPA for this action, there will not be a significant adverse impact to air or water quality, traffic or noise levels, solid waste production, erosion, the sites' flora or fauna, hazardous or nuclear waste disposal, energy conservation, public health & safety, or any other area of environmental impacts as a result of the proposed sale. Entergy will offer continued employment to all NYPA nuclear operations personnel, as well as those staff members directly supporting IP3 & JAF. Salaries will be no less than they currently receive. All other benefits will be identical or equivalent to current benefits. NYPA employees hired by Entergy will receive full credit for their years of service. Entergy will also honor existing union contracts. Therefore, there will be no significant adverse e~conomic or social impacts due to the sale. (Continued on the attached Page 3) If CondiUoned Negative Declaration, provide on attachment the specific mitigation measures imposed. For Further Information: Contact Person: William V. Slade, Director, Environmental Division Address: New York Power Authority, White Plains, New York 10601 Telephone Number: 914-681-6405 For Type I AcUons and Conditioned Negative Declarations, a Copy of this Notice Sent to: Commissioner. Department of Environmental Conservation. 50 Wolf Road. Albany, New York 12233-0001 Appropriate Regional Office of the Department of Environmental Conservation Office of the Chief Executive Officer of the political subdivision in which the action will be principally located. Applicant (if any) Other involved agencies (if any) New York State Department of Environmental Conservation New York State Department of State b0A1 ETROO0003

0 SEQR Negative Declaration Page 3 (Continued from Page 2) 8 Name of Action: The proposed action is the sale of NYPA's Indian Point 3 and James A. FitzPatrick Nuclear Power Plants. Reasons Supporting This Determination: 0 Entergy will pay $636 million for the NPPs themselves, nearly $171 million for the fuel, $92 million for a guaranteed payment relating to the decommissioning agreement & $68 million for NYPA's commitment to additional power purchases from JAF. NYPA will purchase IP3's entire output through December 31, 2004. NYPA will also purchase sufficient JAF output to meet the needs of customers in various economic development programs through December 31, 2004. Rates & allocations will. therefore. not be negatively affected by the sale. The attached SEQRA Full Environmental Assessment Form Addendum contains a more extensive discussion of the review and reasons for this determination. ETROO0004

State Environmental Quality Review FULL ENVIRONMENTAL ASSESSMENT FORM Purpose: The full EAF is designed to help applicants and agencies determine, in an orderly manner, whether a-pviject or action may be significant. The question of whether an action may be significant is not always easy to answer. Frequenll9?there are aspects of a project that are s r.measwwble. It.i aLso.understood.thar-.tih ,o determine signiricance may have little or no formal knowledge of the environment or may not be technically expert in environmental analysis. In addition, many who have knowledge in one particular area may not be aware of the broader concerns affecting the question of significance. The full EAF is intended to provide a method whereby applicants and agencies can be assured that the determination process has been orderly, comprehensive in nature, yet flexible enough to allow introduction of inirmation to fit a project or action. Full EAF Components: The full EAF is comprised of three parts: Part 1: Provides objective data and information about a given project and its site. By identifying basic project data. it assists a reviewer in the analysis that takes place in Parts 2 and 3. Part 2: Focuses on Identifying the range of possible impacts that may occur from a project or action. It provides guidance as to whether an impact is likely to be considered small to moderate or whether it is a potentially-large impact. The form also identifies whether an impact can be mitigated or reduced. Part 3: Ifany impact in Part 2 is identified as polentially-large, then Pail 3 is used to evaluate whether or not the impact is actually important DETERMINATION OF SIGNIFICANCE-Type I and Unlisted Actions Identify the Portions of EAF completed for this project: [] Part 1 [ Part 2 (] Part 3 Upon review of the Information recorded on this EAF (Parts 1 and 2 and 3 if appropriate), and any other suppo,'ling infonnation. and considering both the magnitude and importance of each impact, it is reasonably determined by the lead agency that: 4 [ A. The project wig not result in any large and important impact(s) and, therefore, is one which will not have a significant impact on the environment, therefore a negative declaration will be prepared. 0 B. Although the project could have a significant effect on the environment, there will not be a significant effect for this Unlisted Action because the mitigation measures described in PART 3 have been required, therefore a CONDITIONED negative declaration will be prepared.* 0 C. The project may result inone or more large and important impacts that may havea significant impact on the environment.. therefore a positive declaration will be prepared.

         'A Conditioned Negative Declaration is only valid for Unlisted Actions Sale of the Indian Point-3 & James A. Fit:zPatrick Nuclear                                                      Power Plants.

Name ol Action New York Power Authority Name of Lead Agency William V. Slade.. Director,.Envirconmental Division Pro yplm fR$ =~vfue~ ead Agency Title of Respn sible Officer

     /     Signature of Responsibf "'.cer in Lead Agency                    Signature of Preparer (ll'dilferenri' 7h'6ii"ksponsible officer) ale Sir iV*',our r ETROO0005

                                                               *,ri-rrUJk.tA.; r           INFORMATION Prepared by Project Sponsor NOTICE: This document is designed to assist in delermining whether the action proposed may have a significant effect on 'he environment Please complete the entire form. Parts A through E. Answers to these questions will be considered as part of the application for approval *n*(

I may be subject to further verification and public review. Provide any additional information you believe willbe needea to complete Parts 2 anc 3. It is expected that completion of the lull EAF will be dependent on information currently availabie and will not involve new studies, research or investigation. If information requiring such additional work is unavailable, so indicate and specify each instance. NAME OF ACTION Sale of the IP-3 & JAF Nuclear Power Plants LOCATION OF ACTION (Include Street Address. Municipality and County) IP-3: Buchanan, NY & JAF: Lycoming, NY (See Attachment) NAME OF APPLICANTISPONSOR BUSINESS TELEPHONE New York Power Authority 1914-681-6405 ADDRESS 123 Main Street cIrY/PO STATE ZIP CODE White Plainsc un10601 NY NAME OF OWNER (If different) BUSINESS TELEPHONE Same Same ADDRESS CITY/PO ISTATE ZIP CODE: DESCRIPTION OF ACTION The sale of IP-3 &.OAF. The term sale constitutes the transfer of the 'and,. structures, equipment, personnel, & power contracts. The buyer will purchase the NPPs subject to all existing permits and approvals., Please Complete Each Question-..ndicate N.A. if not applicable A. Site Description Physical setting of overall project, boon developed and unceveloDed areas

1. Present land use: [] Urban f] Industrial 0 Commercial [3 Residential (suburban) C] Rurali(non.farml 0 Forelee [ Agriculture L_1 OtherNuc,*Par Power Plaints

2. Total acreage of project area: At.achmenc, acres.

APPROXIMATE ACREAGE IP3 JAF =.-SrliNT.L-.Y- AFTER COMPLETION Meadow or Brushland (Non-agricuftural) NA acres NA acres 11 Forested acres acres Agricultural (Includes orchards. cropland. pasture. etc I , acres acres Wetland (Freshwater or tidal as per Articles 24. 25 of ECL) ,. . acres. acres Water Surface Area acres acres Unvegetated (Rock. earth orf ill) acres acres Roads. buildings and other paved surfaces acres _ _ _ acre6s Other (Indicate type) acres ,_ _ acres 3 What is predominant sod type(s) on project site? See Atrtachment. a Soiddrainage: Q Welldrained 100t JA%oflsile 0 Moderately well diraedLOO% 1P3  % of site C] Poorly drained -__  % o sie

b. If any agricultural land is involved, how many acres of soil are classified within sod group 1 through 4 o0the NYS Land Classification System? NA acres. (See I NYCRR 370).

4 Are there bedrock oulcroppings on project site? C] Yes Q] No a What is depth to bedrock? Attachment (in feet)

    ... ~..

ETROO0006

5. Approximate percentage of proposed Project site with slopes: n- 0-10 At t .  % r7 10-5% _

E 15% or greater

6. Is project substantially contiguous to, or contain a building, site. or district. isted on the State or me National Registers of Historic Places? C] Yes R No

7. Is projecl substantially contiguous to a site listed on the Register of National Natural Landmarks? C Yes .: No B. What is the depth of the water table? ACtach. (in feet)

9. Is site located over a primary, principal, or sole source aquifer? 5 Yes (* No

10. Do hunling, fishing or shelf fishing opportunities presently exist in the project area? 5 Yes 5 No Atcjch.

11. Does project site contain any species of plant or animal lfe that is identified as threatened or endangered?

Lj Yes [B No Accordingto See Actachment. Identify each species

12. Are there any unique or uoiusual land forms on the protect site? (i.e.. cliffs, dunes. other geological formationsj (3 Yes [@ No Describe

13. Is the project Site presently used by the community or neighborhood as an open space or recreation area?

[3 Yes (@ No Ifyes, explain

14. Does the present site include scenic views known to be important to the community?

C Yes E No

15. Streams within or contiguous to project area: I P-3 : Hudson River, JAF: NA.

a. Name of Stream and name of River to which it is tributary

16. Lakes. ponds, wetland areas within or contiguous to project area:

a. Name See Attachment b. Size (In acres),

17. Is the site served by existing public utilities? [] Yes C] No a) It Yes, does sufficient capacity exist to allow connection? N/A 5 Yes 5] No b) If Yes. wilg improvements be necessary to allow connection? N/A C3 Yes C] No

18. Is the site located in an agricultural district certified pursuant to Agriculture and Markets Law, Article 25-AA. Section 303 and 304? 5 Yes 10 No Attach.

19. Is the site located in or substantially contiguous to a Critical Environmental Area designated pursuant to Article 8 of the ECL. and 6 NYCRR 6177 2) Yes 5 No Attach.

20. Has the site ever been used for the disposal of solid or hazardous wastes? [] Yes 5] No Attach.

B. Project Description

1. Physical dimensions and scale of project (tli in dimensions as appropriatel

a. Total contiguous acreage owned or controlled by project sponsor. acres

b. Project acreage to be developed: NA acres initially: __ acres ulticmately

c. Project acreage to remain undeveloped _acres

d. Length of project, in miles: __ (it appropriate)

e. If the project is an expansion, indicate percent of expansion proposed  %,

I Number of off-street parking spaces existing "_ proposed

g. Maximum vehicular trips generat'1 per hour (upon comptetion of project)?

h If residential: Number and type of housing unds. One Family Two Family Multiple Family Condominium Initially Ultimately

i. Dimensions (in feel) of largest proposed structure__ height: _ width; _ length.

       . Linear feet of frontage along a public thoroughfare project wilt occupy is?               __       ft.

ETROO0007

                                    , -         --     .. wmi,ue removed Irom the sitel'            MA.         tons/Cubic yards

3. Will disturbed areas be reclaimed? [3 Yes [] No N/A 4

a. It yes. for what intended purpose is the site being reclaimed?

b. Will topsoil be stockpiled (or reclamation? [] Yes

• No

c. Wit upper subsoil be stockpiled tot reclamation? [3 Yes [3 No

4. How many acres of vegetation Itrees. shrubs, ground covers) will be removed from site? NA acres.

5. Will any mature forest (over 100 years old) or other locally-important vegetation be removed by this project? N/A

[ Yes (] No

6. If single phase project: Anticipated period of construction NA months, (including demolition).

7. Ifmulti-phased:

a. Total number of phases anticipated NA (number).

b. Anticipated date of commencement phase 1 month _ year. (including demolition).

c. Approximate completion date of final phase _ month _ year.

d. Is phase 1 functionally dependent on subsequent phases? [3 Yes [] No

8. Wigl blasting occur during construction? [D Yes [3 NO N/A

9. Number of jobs generated: during construction NA after project Is complete

10. Number of jobs eliminated by this project NA .

11. Wilg project require relocation of any projects or facilities? [3 Yes [] No Ityes. explain

12. Is surface liquid waste disposal involved? [3 Yes n No N,"A

a. If yes, indicate type of waste (sewage. industrial. etc.) and amount

b. Name of water body into which effluent will be discharged

13. Is subsurface liquid waste disposal involved? [] Yes [3 No Type N/A 14, Wiln surface area of an existing water body increase or decrease by proposal? [ Yes [-No /A Explain

15. is project or any portion of project located in a 100 year flood plain? 03 Yes [ No N/A

16. Will the project generate solid waste? [3 Yes [3 No N/A

a. If yes, what is the amount per month _ tons

b. If yes, will an existing solid waste facility be used? [3 Yes [3 No

c. If yes. give name _; location

d. Will any wastes not go into a sewage disposal system or into a sanitary landfill? [E Yes [ No e It Yes, explain

17. Wilt the project involve the disposal of solid waste? [3 Yes -1 No a If yes. what is the anticipated rate of disposal? _ _ lonstmon'n

b. If yes. what is the anticipated site hfe?_ years 18 Will project use heroicides or pesticides? [] Yes 1- Nc N, A

19. Will project routinely produce odors (more than one hour per day)? ] Yes ,3 No N/!A

20. Will project produce operating noise exceeding the local ambient noise levels" - Yes [] No N/A

21. Will project result in an increase in energy use? [3 Yes [3 No N/A If yes, indicate type(s)

22. It water supply is from wells, indicate pumping capacity . NA gallons/minule,

23. Total anticipated water usage per day NA gallonsiday.

24. Does project involve Local. Slate or Federal funding? [] Yes [3 No N/A it Yes, explain

                                                                                                                                             'Mfi NYDA3ltf -

ETROO0008

25. Approvals Required: Submittal Type Date City, Town, Village Board C] Yes [0 No City, Town. Village Planning Board [] Yes [] No . .....

City, Town Zoning Board L] Yes [, No City. County Heafth Department E) Yes i No Other Local Agencies [] Yes [j No Other Regional Agencies E] Yes Mx No StateAgencies 0 Yes [] No DEC, DOS, etc. FederalAgencies [@ Yes [] No NRC 10CFR50 License C. Zoning and Planning Information

1. Does proposed action involve a planning or zoning decision? E] Yes f" NO N/A It Yes. indicate decision required:

C] zoning amendment C] zoning variance C] specic use 'ermit 5 subdivision C] site plan 0 newlrevision of master plan -3 resource management plan 5 other

2. What is the zoning classification(s) of the site? Electric Generating Facility

3. What is the maximum potential development of the site if developed as permitted by the present zoning?

NA

4. What is the proposed zoning of the site? NA

5. What is the maximum potential development of the site if develobed as permitted by the proposed zoning?

NA

6. Is the proposed action consistent with the recommended uses in adopted local land use plans? N/A 5] Yes 5 No

7. What are the predominant land use(s) and zoning classifications within a Y. mile radius of proposed action?

Attachment

8. Is the proposed action compatible with adjointiglsurrounding land uses within a V.mile? N/A E5 Yes 5 No

9. If the proposed action is the subdivision of land. how many lots are proposed? NA

a. What is the minimum tot size proposed?

10. Will proposed action require any authorization(s) for the formation of sewer or water districts? N/A E] Yes 5 No 1t. Will the proposed action create a demand for any community provided services t;ecreatuon. education, police, lire protection)?

[D Yes E] No

a. If yes, is existing capacity sufficient to handle projected demand? - Yes C] No N/A

12. Will the'proposed action result in the generation of traffic significantly above present levels? C] Yes N/A C- No

a. If yes. is the existing road network adequate to handle the additional traffic? 5 Yes 5 No D. Informational Details Attach any additional information as may be needed to clarity your protect It there are or may be any adverse impacts associated witll your proposal, please discuss such impacts and the measures which you propose to mitigate or avoid them.

E. Verification I cerlify that t information ;rovided above is true to the best of my knowledge. ApplicantiSpons I al . #SrN de Date . Signature _ rite Director , Environmental Div. If the action I ntheCostalAreaand ou am a state agency, complete the Coastal Assessment Form before proceeding with this assessmen.L

                                                                                                                                   .,Ir  N'Iuo I vJ ETR000009

C-' Part 2-PROJECT IMPACTS AND THEIR MAGNITUDE Responsibility of Lead Agency Senerall Informatdon (Read Carefully)

    " In completing the form the reviewer should be guided by the question: Have my responses and determinations been reasonable' The reviewer is not expected to be an expert environmental analyst.
    " The Examples provided are to assist the reviewer by showing types of impacts and wherever possible the threshold of magnitude tiat would trigger a response in column 2. The examples are generally applicable throughout the Stale and for most situations. But. for any specific project or site other examples and/or lower thresholds may be appropriate for a Potential Large impact response. thus requiring evaluation in Part 3.

• The impacts of each project, on each site, in eac., locality, will vary. Therefore. the examples are illustrative and have been offered as guidance. They do not constitute an exhaustive list of impacts and thresholds to answer each question.

    " The number of examples per question does not indicate the importance of each question.

• In identifying impacts, consider long term, short term and cumulative effects.

Instructions (Read carefully)

a. Answer each of the 20 questions in PART 2. Answer Yes if there will be any impact.

b. Maybe answers should be considered as Yes answers,

c. If answering Yes to a question then check the appropriate box (column 1 or 2) to indicate the potential size of the impact. If impact threshold equals or exceeds any example provided, check column 2. If impact will occur but threshold is lower than examnple. check column 1.

d. Identifying that an impact will be potentially large (column 2) does not mean that it is also necessarily significanL Any large impact must be evaluated in PART 3 to determine significance. Identifying an impact in column 2 simply asks that it be looked at further.

e. If reviewer has doubt about size of the impact then consider the impact as potentially large and proceed to PART 3

f. If a potentially large impact checked in column 2 can be mitigated by change(s) in the project to a small to moderate impact. aiso check the Yes box in column 3. A No response indicates that such a reduction is not possible. This must be explained in Part'3 1 2 3 Small to Potential Can Impact Be Moderate Large Mitigated By IMPACT ON LAND Impact Impact Project Change I. Will the proposed action result in a physical change to the project site?

E] NO DYES Examples that would apply to column 2

   "   Any construction on slopes of 15% or greater. t1, foot rise per 100 foot               0_                         [     3Yes       QJ No p1 length), or wnere the general slopes in the project area exceed 10%.

• Construction on land where the depth to the waler table is less than 3 o 0 I Ys ONo feet

   "   (,onstruclion of paved parking area for 1.000 or more vehicles.                        0                  D             --Yes      LDNO
   "   Construction on land where bedrock is exposed or generally within 3 feel                                   0           _-{Yes      []No, of existing ground surface.
   "   Construction that will continue tor more than I year or involve more than                                    -I            Yes     C] No one phase or stage.

• Excavation for mining purposes that would remove more than 1.000 tons J )'-Yes NCN of natural material (i.e.. rock or sod) per year.

   "   Construction or expansion of a santary landfill                                                            [        1 ý]Yes          'No
   "   Construction in a designated floodway.                                                 L7                  0]        I  DYes        CDNo
   "   Other impacts Will there be an effect i       ny unique or unusual land forms found on the sile? lie.. cltifs, dunes, geological formations. etc.) E] NO       Q   YES 0    Specific land     forms,                                                               0                   0           DYes        C]No sil, III-a"I -

ETRO00010

0 1 2 3 IMPACT ON WATER I Small to Moderate Potential Large Can ImpactBy Mitiated Be Impact impact ProMect Change

3. Will proposed action affect any water body designated as protected? rjtChn ECL) _I a.

(Under Articles 15, 24. 25 of the Environmental Conservation Law. _Imct Xr NO .7 YES Examples that would apply to column 2 -

"  Developable area of site contains a protected water body.                                                       --'Yes       7-_Nc

• Dredging more than 100 cubic yards of material from channel of a 0 0l _vYes C]lNo protected stream.

" Extension of utility .distribution facilities through a protected water body. 1 0 (JYes C3 No

"  Construction in a designated freshwater or tidal wetland.                                            ci        OE EYes         [lNo 0            0l       QYes          QNo      a

• Other impacts:

4. Will proposed action affect any non-protected existing or new body of water? E) NO El YES Examples that would apply to column 2

• A 10% increase or decrease in the surface area of any body of water or El El [3EYeS C]No more than a 10 acre increase or decrease.

" Construction of a body of water that exceeds 10 acres of surface area. 0l .0 C3'Yes [CNo

• Other Impacts: ElYes ONO

5. Will Proposed Action affect surface or groundwater quality or quantity?

ox NO [EYES 4 Examples that would apply to column 2

• Proposed Action will require a discharge permit. C]Yes r_1 N
• Proposed Action requires use of a source of water that does not nave 0 rn ElYes lNo approval to serve Proposed (protect) action. 0

" Proposed Action requires water supply from wells with greater than 45 El ElYes lNoN gallons per minute pumping capacity.

• Construction or operation causing any contamination of a water supply El EvYes E-No system. El El r-1Yes ONO i

" Proposed Action will adversely affect groundwater. El EL EYes ONo

• Liquid effluent will be conveyed off the site to facilities which presently do 01 El El not exist or have inadequate capacity.

El ElYes ElNO

• Proposed Action would use water in excess of 20.000 gallons per day.

0l Eves ElNo  ; Proposed Action will likely cause siltation or other discharge into an

• existing body of water to the extent that there will be an obvious visual I El contrast to natural conditions I Eles -lNo
• Proposed Action will require the storage of petroleum or chemical products Ci greater than 1.100 gallons.

,   Proposed Action will allow residential uses in areas without water and/or El sewer services.
"   Proposed Action locates commercial andlor industrial uses which may                                  El        -Yes        ENc require new or expansion of existing waste treatment anolor storage             I facilities.

• Other impacts- E FIYes ENo

5. Will proposed action alter drainage flow or patterns, or surface water runoff? M3 NO El YES Examples that would apply to column 2 9 Proposed Action would change flood water tows E

C]NO ETROO001 1

1 2 3 Small to Potential Can Impact Be Moderate Large Mitligated By Impact iImpact j Prolect Change

" Proposed Action may cause substantial erosion.                                   lC]                   C-jYes         2No
" Proposed ActiOn is incompatible with existing drainage patterns.                 11C:                        es          N
"    Proposed Action will allow development in a designated floodway.             0            3         CEe              ,N
" Other impacts:                                                                  El          13     JYes              r1No IMPACT ON AIR

7. Will proposed action affect air qualily? nx NO C] YES Examples that Would apply to column 2

• Proposed Action will induce 1,000 or more vehicle trips in any given hour. C1 0l C]Yes' [DNo a Proposed Action will result in the incinOeration of more than I ton of refuse 1:1 0l fOYes [3No per hour.
• Emnision rate of total contaminants wilt exceed 5 lbs. per hour or a heat source producing more than 10 million BTU's per hour.

O C3 17Yes []No

• Proposed action will allow an increase in the amount of land committed to 0l [3 Yles 7j No industrial use.

a Proposed action will allow an increase in the density of industrial El El Yl~esEl4o development within existing industrial areas.

• Other impacts: o3 E I JYes []NO IMPACT ON PLANTS AND ANIMALS B, Will Proposed Action affect any threatened or endangered species?

f*NO []YES Examples that would apply to column 2

• Reduction of one or more species listed on the New York or Feaeral list. C] El C]Y~es -'No using the site. over or near site or found on the site, 0 Removal of any portion of a critical or significant wildlife habitat. oEl [3Yes [JNO
• Application of pesticide or herbicide more than twice a year, other than for El 0l OYes [3No agricultural purposes.
• Other impacts: o iYles [I:]No

9. Will Proposed Action substantially affect non-threatened or non-endangered species? yj NO YES Examples that would apply to column 2

" Proposeo Action would Substantially interfere with any resident or migratory C] (1)Yes Nc lish. shellfish or wildlife species. " Proposed Action requires the removal of more t'an 10 acres ot mature forest (over 100 years of age) or other locally important vegetation. El EYes [Ne IMPACT ON AGRICULTURAL LAND ,'=SOURCES 10 Will the Proposed Action affect agricultural land resources? r@ NO E YES Examples that would apply to column 2

• The proposed action would sever, cross or limit access to agricultural 0l 0l Eles lNol land (includes cropland. hayfields. pasture, vineyard. orchard. etc.1 ETROO0012

0 1 2 1 3 Small (o Porenliat Can Impact Be Moderate Large Mitigated By Impact impact I Project Change " Construction activity would excavate or compact the soil profile of 0l 0l EYes ENO agricultural land. " The proposed action would irreversibly convert more than 10 acres of 0l 0l ElYeS ElNo agricultural land or, if located in an Agricultural District, more than 2.5 acres of agricultural land. " The proposed aclion would disrupt or prevent installation of agricultural El Qyes ElNO land management systems (e.g., subsurface drain lines, outlet ditches, strip cropping); or create a need for such measures (e.g. cause a farm field to drain poorly due to increased runoff) 0l a " Other impacts: C1 CYes ElNo IMPACT ON AESTHETIC RESOURCES

11. Will proposed action affect aesthetic resources? g] NO F1 YES (It necessary, use the Visual EAF Addendum in Section 617.20, Appendix B.)

Examples that would apply to column 2

• Proposed land uses. or project components obviously different from or in 11 .]Yes ElNO sharp contrast to current surrounding land use patterns, whether.

man-made or naturaL " Proposed land uses, or project components visible to users of aesthetic resources which will eliminate or significantly reduce their enjoyment of El El ElYes ENO the aesthetic qualities of that resource. 4i " Prolecl components that will result in the elimination or signficant El 0l El Yes ONO screening of scenic views known to be important to the area. " Other impacts: El El C] Yes C]lNo IMPACT ON HISTORIC AND ARCHAEOLOGICAL RESOURCES

12. Will Proposed Action impact any site or structure ot historic, prehistoric or paleontological importance? [Q NO C] YES Examples that would apply to column 2

" Proposed Action occurring wholly or partially within or substantially EYes ElNo contiguous to any facilty or site listed on the State or Nationat Register of historic places. i

• Any impact io an archaeological site or fossil bed located within the project site.

El ElYes C]No

• Proposed Action will occur in an area designated as sensitive for El [I; U]"' es [NO archaeological sites on the NYS Site Inventory.

"     Other LT-pacts:                                                                 El                   -]jYes      C]No 0]

IMPACT ON OPEN SPACE AND RECREATION

13. Will Proposed Action aflect Ihe quantity or quality of existing or future open spaces or recreational opportunities? [] NO C] YES Examples thal would apply to column 2

" The permanent foreclosure of a luture recreational opportunity, El        El        U    Te       ElNo
"     A malor reauction of an open space important to the community.

I El El EYes

• Other impacts- El El Yes E-'No jirr paYiwiiif ETROO0013

1 2 3 C. Small to Potential Can Impact Be Moderate Large Miligaled By Impact Impact Proiect Change IMPACT ON CRITICAL ENVIRONMENTAL AREAS

14. Will Proposed Action impact the exceptional or uniue characteristics of a critical environmental area (CEA) eslabtished pursuant to subdivision CI 6 NYCRR 617.14(g)? n] NO C] YES List the environmental characteristics that caused the designation of the CEA.

S) Examples that would apply to column 2

  "      Proposed Action to locate within the CEA?                                             El        EYes        ONo

• Proposed Action will result in a reduction in the quantity of the resource? El EYes ONO
• Proposed Action will result in a reduction in the quarity of the resource? El EYes ONO
• Proposed Action will impact the use, function or enjoyment of the El ElYes OlNO resource?
• Other impacts: 0l El ElYes OlNo b

IMPACT ON TRANSPORTATION

15. Wig there be an effect to existing transportation systems?

                                                                @ NO        CO]YES Examples that would apply to column 2 0

Alteration of present patterns of movement of people andlor goods. 0l El 0I El Yes ElNO S Proposed Action will result in malor traffic problems. 0. El El Yes S Other impacts: El E] Yes IMPACT ON ENERGY 16 Will proposed action affect the community's sources ot fuel or enctgy El supply?

• NO n YES Examples that would apply to column 2 C]NO

  *    . Proposed Action will cause a greater than 5% increase in the use of any      t0~                -l Yes form of energy in the municipality.

L-] No

• Proposed Action will require the creation or extension of an energy transmission or supply system to serve more than 50 single or two family El ElYes residences or to serve a major c*..merciat or industril use.

0 Other impacts: 0l El Yes ElNo S11r'NYOaii,"n Ic ETR000014

0 1 2 3 1 NOISE AND ODOR IMPACTS Small to Polenial Can Impact Be Moderate Large Mitigated By

17. Will there be objectionable odors, noise, or vibration as a result of the

[g NO fl YES Impact -Impact Project Change Proposed Action? Examples that would apply to column 2

• Blasting within 1.500 feet of a hospital, school or other sensitive facility. 11
• 0 0

0iYes LNo " Odors wilg occur routinely (more than one hour per day). 0i LiYes 0iNo 0i 0 LiYes [LNo " Proposed Action will produce operating noise exceeding the local ambient Li I noise levels for noise outside of structures. 0i " Proposed Action will remove natural barriers that would act as a njise Li i]Yes flNo screen. " Other impacts: 0i Li IMPACT ON PUBLIC HEALTH

18. Will Proposed Action affect public health and safety? Li

2) NO Li"ES Examples that would apply to column 2 LYes ONo 4 Li

" Proposed Action may cause a risk of explosion or release of hazardous substances (i.e. oil. pesticides, chemicals, radiation, etc.) in the event of accident or upset conditions, or there may be a chronic tow level discharge or emission. OYes ONo " Proposeo Action may result in the burial of'hazardous wastes* in any Li form (i.e. toxic, poisonous, highly reactive.,radioactive, irritating. infectious. E etc.) LiYes LONO 0 " Storage facilities for one million or more gallons of liquified natural gas LI Li or other flammable liquids. LYes .- ONo " Proposed action may result in the excavation or other disturbance within Li 2.000 feet of a site used for the disposal of solid or hazardous waste. " Other impacts: Li LiYes [JNo Li IMPACT ON GROWTH AND CHARACTER 0 OF COMMUNiTY OR NEIGHBORHOOD

19. Wig proposed action affect the character of the existing community? 0i

                                                                   ] NO      n YES                          Li Examples that would apply to column 2 0Li           [JYes          0JNo

• The permanent population of the city. town or village in which the project is located is likely to grow by more than 5%. L; 0
• The municipal budget for capital expenditures or operating services will I. 0i LYes ONO increase by more than 5% per year as a result of this project.
• Proposed action wil conflict with officially adopted plans or goals Li 0 Yes 0 No Li Li LiYes[]e {-No0 C]No f
• Proposed action will cause a change in the density of land use. 0 Li
• Proposed Action wilt replace or eliminate existing facilities. structures or 0 0i UYes areas of hislonc importance to the community.
• Development witg create a demand for additional community services Li Li LYes (e.g. schools, police and fire. etc.) Li 0i 0 No

" Proposed Action wilg set an anportant precedent for future projects. LYes " Proposed Action will create or eliminate employment. Li 0i LiYes 0 No Li O'-Yes

• Other impacts:

L 20 Is there. or is there likely to be. public controversy related to potential adverse environmental impacts? a] NO n YES

                                                                                                                    . -  -  ..     . -,f     -   n-      I
                                            .- -  -  ."' I tar'-.......       i.-

sit 001N14111 1 ETR00001 5

                                   ,  ., ,*-rVALUA I ION OF THE IMPORTANCE OF IMPACTS G                                                          Responsibility of Lead Agency Part 3 must be prepared If one Or more Impactfs) Is considered to be potentially large, even If the Impactis) may be mitigated.

instructions Discuss the following for each impact identified in Column 2 of Part 2: I. Briefly describe Ihe impact.

2. Describe (if applicable) how the impact could be mitigated or reduced to a small to moderate impact by project change(s).

3. Based on ihe information available, decide if it is reasonable to conclude that this impact is Important To answer the question of importance, consider:

• The probability of the impact occurring
• The duration of the impact

[Its irreversibily, including permanently lost resources of value

• Whether the impact can or will be controlled
• The regional consequence of the impact Iits potential divergence from local needs and goals
• Whether known objections to the project relate to this impact.

(Continue on attachments) sir NVIVOO'Q* ETROO0016

ATTACHMENT STATE ENVIRONMENTAL QUALITY REVIEW ACT FULL ENVIRONMENTAL ASSESSMENT FORM L GENERAL INFORMATION Action: The proposed action will, if completed, involve the transfer to and assumption by a purchaser of the ownership and operation of the Indian Point 3 and James A. FitzPatrick Nuclear Generating Stations in the same manner as provided for in the state and federal licenses, permits, and approvals currently in effect for these facilities. The New York Power Authority ("NYPA") intends to relinquish all land, buildings, equipment, personnel, and lic:oses, permits, and approvals associated with these facilities to a party that can draw upon extensive operational experience and sound financial resources and is committed to the continuation of current operations without substantial change. The proposed action will not result in any physical change to either site. Locations:

          "    Indian Point-3 Nuclear Power Plant Bleakley Avenue & Broadway Buchanan, New York 1051l Mailing Address:

P.O. Box 215 Buchanan, NY 10511-0215

          "    James A. FitzPatrick Nuclear Power Plant 261 Lake Road East Lycoming, New York 13093 Mailing Address P.O. Box 41, Lycoming, NY 13093-0041 Site Descriptions:

Indian Point 3 NYPA's Indian Point 3 Nuclear Generating Station ("IP3") is located on a 102 (.) -acre site on the east bank of the Htudson River in the Village of Buchanan and the Town of Conlandt in Westchester County. It is a part of a larger, 235-acre site that also hosts the Indian Point I and Indian Point 2 nuclear facilities to the north of IP3. The site is about 24 miles north of the New York City boundary. The license issued by the NRC for IP3 expires in 2015. ETR00ooo17

2 r 2 The IP3 site is surrounded on almost all sides by high ground ranging from 600 to 1,000 feet above sea level. Across the river, the west bank of the Hudson is flanked by Dunderberg and West Mountains to the northwest and Buckberg Mountain to the west-southwest. Geologically, the 1P3 site consists of a hani limestone formation. About 80,000.000 gpm flow past the IP3 site during the Hudson River's peak tidal flow. The flow of the River is affected more by the tides than it is by runoff from the tributary watershed. The width of the River opposite the IP3 site varies from 4,500 to 5,000 feet. The depth varies from 55 to 75 feet less than 1,000 feet offshore. The IP3 site is not located in the 100-year flood plain. 5l Certain ancillary off-site facilities, such as the Joint News Center at the Westchester County Airport. will be involved in the transfer. James A. FitzPatrick NYPA's James A. Fitzpatrick Generating Station ("JAF") is located on a 702 L+)-acre site along the south shore of Lake Ontario in the Town of Scriba in Oswego County. The site is immediately to the east of the land upon which the Nine Mile Point I and Nine Mile Point 2 nuclear facilities are located. Both of these facilities are presently operated by the Niagara Mohawk Power Corporat(on, but trans',rs of ownership are projected for 2000. The site is about 7 miles nonheast of Oswego. 36 miles northwcst of Syracuse, and 135 miles east of Buffalo. The license issued by the NRC for JAF expires in 2014. The land around the JAF Site is primarily rural. Much of the land in the plant's vicinity and in Oswego County was formerly farmed but is now covered with second-growth trees and brush. The remainder of the land is comprised of wooded areas and farms. The bottom of Lake Ontario in this area is largely bedrock, and, therefore, few natural harbors or landings exist near the JAF site. ETROO0018

3 The JAF site is located in the northeast portion of the Lake Ontario Plain drainage basin. This basin encompasses about 34,800 square miles, exclusive of lake surface, in New York and the Province of Ontario. Catfish Creek, about three miles to the cast, and the Oswego River, eight miles to the west, are the closest large streams. Lake Ontari is the easternmost of the Great Lakes. It is 193 miles long and 53 miles wide at its widest point It has a shoreline length of 726 miles and a surface area of 7,340 square miles. The JAF plant-site proper is not located in the 100-year flood plain. The JAF site lies mainly within the Erie-Ontario Lowlands physiographic province. This province consists of a relatively flat plain, one that rises gently f.om Lake Ontario to the Appalachian Uplands, which form its southern border. The Erie-Ontario Lowlands is bounded on the east by the Tug Hill Upland. The JAF site is a generally flat and featureless plain. It has an elevation of 270 feet above sea level rising to 310 feet one mile away at its southern extrcmity. The surface soils consist of bouldery-ablation tills, which immediately overlay a compact basal till lying on bedrock. The underlying rock is flat-lying sandstone imbedded with shale of Ordovician Age. The bedrock is known as Oswego Sandstone. Certain ancillary oft-site facilities, such as the Joint News Center and the Emergency OtT-Site Facility located at the Oswego County Airport and the Energy Information Center located on NiMo property, will also be involved in the transfer. II. Specific responses to questions contained in the Enviruonmenlal Assessment Form A. Site Description

2. Total acreage of the project area:

IP3: 102 + acres JAF: 702 ! acres

3. What is the predominant soil type(s) on the project te?

IP3: The general landscape.of the region consists of bedrock-supported ridges. The highest elevation in the region is 1,000 feet, and elevations range from 50 to 300 feet above mean sea level in low-lying areas. At the plant site, the ground is level and is covered with rill. The surface is artificially leveled and bedrock lies very close to the surface. ETRo00oo9

Cj 4 JAF: Surface soils consist of bouldery-ablation tills which immediately overlay a compact basal till lying on bedrock. 3.a Soil drainage: 1P3: 100% of the site is moderately weii drained. JAF: 100% of the site iswell drained.

4. Are there bedrock outcroppings on project site?

IPM: Yes. JAF: Generally speaking no, some bedrock may be visible by the lake shoreline. 4.a. What is the depth to bedrock? lP3: 10 to 15 reet. JAF: Surface soils immediately overlay a compact basal till lying on bedrock. The underlying rock is flat-lying sandstone imbedded with shale of Ordovician Age. This bedrock is known as Oswego Sandstone. The shale content increases with depth; at approximately 130 feet below the surface the Oswego Sandstone grades into the underlying Lorraine group, which is predominantly shale with sandstone members.

5. Approximate percentage of the proposed project site with slopes: 0 to 10%, 10 to 15%, or 15% or greater.

1P3: 95% greater than 15%; 5% is 0 to 10%. JAF: 100%0to 10%. S. What is the depth of the water table? IP3: Eight to ten feet. JAF: Five to ten feel.

10. Do hunting, fishing or shell fishing opportunities presently exist in the project area?

1P3: No, NYPA does not permit hunting or fishing on the project site. However, fishing is available in the adjacent Hudson River. JAF: No, NYPA does not permit hunting or fishing on the project site. However, fishing is available in Lake Ontario. I1. Does project site contain any species or plant or animal life that is identified as threatened or endangered? tP3: No. Endangered species are not present on site. Short-Nosed Sturgeon, an endangered species, is present in the Hudson River. JAF: No. Endangered species are not present on site, ETROO0020

0

16. Lakes, ponds, wetland areas within or contiguous to project area:

IP3: No, lakes, ponds, or wetland areas occupy the site or are contiguous thereto. JAF: There are no identified wetlands on the plant site proper. There are wet areas on the south side of Lake Road, on NYPA-owned land. Of course, the site is located on the south shore of Lake Ontario, a water body occupying approximately 7,340 square miles.

19. Is the site located in or substantially contiguous to a Critical Environmental Area designated pursuant to Article 8 of the ECL, and 6 NYCRR 617?

IP3: Yes, the Westchester County Planning Department has cla;sified the total shoreline within the County as a Critical Environmental Area. JAF: No.

20. Has the site ever been used for the disposal of solid or hazardous waste?

IP3: Yes, solid waste. NYPA has not disposed of hazardous waste on site. The solid waste disposed of" consisted of construction and demolition (C&D) debris; e.g., bricks, cement blocks, etc. Also, the Nuclear Regulatory Commission approved the engineered disposal (i.e.. burial with a clay cap and monitoring well) of an old septic tank used at Unit 1. JAF: Yes. solid waste. NYPA has not disposed of hazardous waste on site. The solid waste disposed of consisted of C&D debris; e.g. bricks, cement blocks, etc. B. Project Description Questions 1-24 of this section of the EAF proceed from the assumption that the "project" will alter the site described in the preceding section. Since the action that is the subject of this EAF involves no such alteration, the questions contained in this section, with the exception of the final question (025) are not applicable. With respect to question 25, certain existing permits must be transferred. C. Zoning and Planning Information

7. What are the predominant land use(s) and zoning classifications within a 1/4 mile radius of proposed action?

IP3: Con Edison's Indian Point Stations Units I and 2 are immediately adjacent to IP3. Tlie area is generally industrial and commercial. The area within '%mile of the site has an M-2 zoning classification, a Planned Industrial District. JAF: The Nine Mile Point Nuclear Generating Stations Units I and 2 are immediately adjacent to JAF. In general, the remainder of the land around JAF is primarily rural. There is no zoning in the Town of Scriba. ETROO0021

(CUASSIAL MAIJAr LL.IL:J1 I', li.llAA t federal ConsistenScy Asesvs.et aints An applic:.st. seeking a Permit, license, waer, certification ot siolmtr type of approval train a federal alennCy which is subject to the New York Stale Coastal M~anagement Program tAMP. shalt Complete this assessment ftrn !or any proposed iclvilv Inhatwil occur within and/or directly allect the State's Coastal Area. This fount is intended to assist an applicaill in enllyi,;ng lhat tihe proposed activity is consistent with New York Sllte's CMP as required by U.S. Department of Commence regulations (It CFR 930.57). It should be completed at the time when the federal application is prepared. The Oepaiuineist of State wilt ust the 'ncompleted form and accompanying inlorimaaie inits ht neiew oa Insaapplicant's certilication of consistency. A. APPLICANT

1. Name: Pawer Authority INewu York Power Ait'hnrityr (please ptirtl

2. Address: 123 Maln Street, hitl*i Plains, N0Y 10601

3. Telephone: Area Code 19141 681-6405

9. PRIOPOSEO ACTIVITY

1. &rie desnliptimr or activity: Sale of the Indian Point 3 and James A. FitzPatrick Huclear Power Plants.

2. Purpose ao acivity: Sale of the Power Authority's tVO nuclear power plants.

2. Location of activity:

IP3: Westchester Buchanan Sleak!ey Ave. I Broadway JAF: Oswego ".-yconinq 2G6 Lake Road East County City. Town orVtaige Siteet u SineDescription

4. Type at '-decat pewnsfitcense reqrenlf:llC 10 CFR 50 Licene.se S, Federal application number, it knowwn:

6. It a state perniiticenste was issued or is required for the proposed activity, identify the state agency and provide the applcation oc permit numiber, i known: CEC SPIDES Permit C air ner"mits.

C. COASTAL ASSESSMENET Check either -YES- or 'hO' tIo each of tIre totlonvino questions. The numbers ltettowing eJncr question refer to tihe policics described in nhe CrtP docurent Isee lootilote oilpage 29 wl2Mch miy be allttced by irt sloposed activity. I. Wil the proposed aclinty Lr l in any of the to1tow0iri: A. Large physical change to a sitewithinthe coastal area which wll require the preparation Of an enironorrsntat impact statement? (fl. 22, 25. 32. 3.7. 38. 41, 431 ......................

b. Physical alteration of mere than two acres on land along the shorelie. lancdun*ser jtve a.2istat waters? 12. 51, 12. 20. 28. 3S. $41..................................... ...

c. Reviitliaiaoiroedevelopmenf at a deterioraled or at ndeluhitied wateitront site? Ill .......... a

d. Reduction af existing or polential public access to or alots: coastal watlers 119. 201 .

t. Adverse effect upon the commercial or rscreational use 0t caosta fish resources?) I IOn x I. Sitingof a ficility essential so the exploration. development and production of energy x_

reSources in coastalwaItis or or %ss O*ute Conetinental Shttiv 291 ............

g. Siting ota ticisliy essential to gercneration or itrnsisnsro oa enetrg? 121. . .............

h, Mining, eiacavaton,or diedging itoheilies. or the lacuisensat Ofdredged ot fi llmaternal its AL coastal walers? 115 3 . .........................................................

i. Dischtarge of treies. hearideus substances or other poltuitant into coastal waneis? t1. IS. 3S5 j, Oriai.ni aI saorirnwaser ru-rall or.* iner0 viclt*ero into coaisal waters? 1221..... .......

k. Tiiilont. a, stiosso.ereatmeoni. O, 6dsPQll @ &'aste& so dI or rarardauis irl~terals t15. 1JI .

I. Avvlre elites upon land Or wattns ute winhtni the Stase's Sstick s"aerl 141 .... ..............

2. Wil Ith proposed aCtiel~s then o ie I.CaIr In. on, o adnlceril so any at the fllowing' A. State deilgnatd htashwler or tidal welland? 1441 ..................................... x D. federally deg*igated stood And/or State designated erloion' tialaid area? 1It. 12. 1*.1 ........... -I-

c. State designated sigi nthcail lhih andlor wIid e htiatalal l ... ............ . ..........

d. State designated significant cerrac resouice o aeal 124) ................... .............

e. State designated ,inpraIsM anicinlluriln land00? (261.. ......................................

g. Bao.dune ofrAhair ier island tfill...... .............................................

g. Major earts at Albany Buttilo.e Ogdertshung, OsvseltO or New Yrk? ll........................

iW.*1i.. ... j'tlf. .. .

                       ,. ihra...L. .         .                      .dt* i,rlll.            ....              .
                                                                                                              .I.

ETR000022

yes PiQ C

1. Will the proposed activity MpUlpeany o0 the lllowalig

a. W alehlont site? I2, 21. 211 ...................................................

It. Provision as newC pu.blic services o ,ntIasituCtlue in ftdeveloped or sparsely Popullated

                                                                                                                                                .....    ..         x sections of the coastal area? (61 .........................................

C. Con$liruClon, or jtecoslaucliOi of a lleod of erosion control OtituriWtJ 1I, 14. I... -. ".

d. State .2ler qualiLty Permit atr Cititl]c6Ofl 130 , 3-. 0.. . . x

e. State air quality perMit cc cerlication? 141. 431 ..................................... . .

4. W.lt tIN proposed activity acssr within andlaor afled all area Covered by a State Approved local waterfront levitallatilal programl Iste policies in local progain docuvrentl' .....................

0. ADDITIONAL STEPS

1. It alt of the questions in Section C ate answered "NO'. then the applicant or agency snall comolele Section E and submil the documentation required by Section F.

2. If any otlhIe questions in Section C aff answered 'YES'. then the applicanl of agent is advised to consult the CMP, ar where appropriate. the Iocal waltifrOnt levrltltiation program document'. The proposed activity must be analysed in more detail with respect to the applicable stele or local coastal pol*cies. In the space provided below or on a'separmte pagelOs) the applticant or agent lhall: Ill idenlity. by their policy numbers, which coastal policies are aflected by the activity. IbI briefly assess 0l4 eflects of .4 activity upon the policy: and. ha state how the activity it cansistent will- each policy.

Followurg the comirteleon ol this written asselsonrrst. the applicamt w agency shaltl conplete Seci;on E and submit the documentation required by Section F. E. CERTIFICATION The applicant or agent must certify that the proposed activity is .mitisterlm wtlh the State's ClA.t a the approved local waterfront revtlitislpon p*ogram, as appropriate, I this cer*flication cannot be made, the proposed ati;vity shalt not be undertaken. It this certificatlion can be made, complete this Section,

      *The proposed acliv;iycomplies with New York State's approved Coastal Managenemt Program, as wilhtheapplcablea                                         pproved local waterliont rev;Italration program, ace wit be conducted as a manner consistent with such program.-

lNower Authority (iew York Power Authoricy) (.uiplic11ttArjenlt't Nlame: Ao .es,: 123 Mtain Street, White Plains, NIY 10601 Telephore: AreaCode 19141 681-640/ . . / dog f ApplicartVAqersl's Signature: ____________r___ F SUOUSSIC'" REQUIREMENTrS

1. The optlcsrit a. apent shalt subllrilthe frioermng document. to the ie,. Yok Stile Dep.trtrent at State. Division oa Coastal ftasoutces. 41 State Street ° 0h Floar. Albany. New Yorbk1223).

a Orginal Sig-red lot.n. b Copy of the calnoeteild federal azecy applicaloin.

c. Other availabl1h11ormat;on which wousld support the Certiiclta.l Of co1ittei-c

2. The applcait a. atent shall aso$ tubreit a copy a( itis coinpleted lor, AlOrg with vuth Iw# ap.lkaron to thlefederal agency.

3. It there are any ua.*olua+n regffrdg the trbmlssior of this folbn, contact 'tie Department Sitsl*ryar ISof ) 4474-.000.

                 .ntrarridDetparrmarnt ol Slate iegitowrl r5 11ces.litia [le appeoptairt                    regional and cýVunlyprm...rngagernrLrra.Ln..
  *.      '..itsem   All . .0 Av.5.Il.. flt *. -VCtiii. I.:I. 6              .          l              ~

ETR00002 3

SALE OF THE INDIAN POINT J & JAF NUCLEAR POWER PLANTS New York State Department of State Coastal Management Assessment Form Federal Consistency Assessment Form - Additional Information C. COASTAL ASSESSMENT Check either "Yes" or "No" for each of the following questions. The numbers following each question refer to the policies described in the CMP document which may be affected by the proposed activity.

2. Will the proposed activity affect or be located in, ort. or adjacent to any of the following:

a. State designated freshwater or tidal wetland? (44)

Policy 44: Preserve and protect tidal and freshwater wetlandreand preserve the bencits deriv ed from these areas. Effects of the ProposedActivities on these Policies There are no wetlands on the IP3 site. Although there are no wetlands on'the JAF plant-site proper, there are some wet areas within the total site boundary for sale. The wet areas are on tile south side of Lake Road. The proposed activity is the sale of the Indian Point 3 and James A. FitzPaftrick Nuclear Power Plants. There will'be no physical change to cither site as a result of t[le proposed activity. Therefore, JAF's wet areas will not be affected. Why the ProposedActivitiesare Consistent The prospective buyer will purchase the sites in compliance with alt applicable environmental permits and licenses. Similarly, the prospective buyer would then be required by law to maintain the sites in compliance with the terms and conditions of these environmental permits and licenses. As such, tile proposed activity is consistent with Policy 44.

b. Federally designated flood and'or state deswenated erosion hazard areas! (1I. 12. 17)

Policy I I Buildings and other structures will be sited in tile coastal area so as to minirmize damage to property and the endangering of huntar lives caused by flooding and erosion. Effects of ilie ProposedActivities on these Pulicies The proposed activity is the sale of the two existing nuclear power plants. lrrildings and other structures will not be sited in the coastal area as a result of the sale. Existing site buildiols and structures have been sited and constructed in accordance with all applicable laws and regulations. Therefore, Policy I I is not affected. Why the ProposedActivities areConsistent The proposed sale will not, in and of itself, result in the siting of any buildings or structures in tile coastal area. The proposed sale is therefore consistent with Policy II. ETROO0024

2 Policy 12: Activities or development in the coastal area will be undertaken so as to minimize damage to natural resources and property from flooding and erosion by protecting natural protective features including beaches, dunes, barrier islands and bluffs. Effects of the ProposedActivities on these Poflicies The proposed sale will not, in and of itself, result in any physical activity or development within the coastal area. Why the ProposedActivities are Consistent. As there will not be anty activity or development in the coastal area associated with the proposed sale. it is consistent.with Policy 12. Policy 17: Non-structural measures to minimize damage to natural resources and property from flooding and erosion shall be used whenever possible. Effects of the ProposedActivities on these Policies As the proposed sale will not, in and of itself, involve any physical activity, neither structural nor non-structural measures need to be employed. Why the Proposed.-Icrivides are Consistent There will not be any physical change to the sites as a result of the proposed activity. Theret'ore, the proposed sale is consistent with Policy 17.

3. Will the proposed activity require any of the following:

d. State water quality permit or certification? (30. 38 40)

Policy 30: Municipal, industrial, and commercial discharge of pollutants, including but not limited to. toxic and hazardous substances. into coastal waters will conrorm to state and national wat.r quality standards. Effects of the Prupused.. ctivities on dtese Policies The prospective buyer will purchase the sites in compliance with existing environmental permits and licenses. The buyer would then be required to maintain these sites in Compliance with the terms and "conditions of these permits and licenses. Why the ProposedActivities are Consistent Both sites operate in compliance with all applicable environmental laws and regulations. The plants will be required to continue to do so under any new ownership. 'llihref*re, the proposed sale is consistent with Policy 30. Policy 39- The quality and quantity or surface water and groundwater supplies wvill be conserved and prolecteu, particularly where such water constitutes the primary or sole source of water supply. Effects of the ProposedActivities on these Policies The plants are in compliance with all applicable environmental regulations. 'rhey will be required to remain in compliance under any new ownership. ETR000025

3 Wlhy lhe ProposedActirifics are Consistent The plants are in environmental compliance, and will be required to remain so under new o%%nership. Their proposed sale is , therefore, consistent with Policy 38. Policy 40: Emuent Discharged from major steam electric generating and industrial facilities into coastal waters will not be unduly injurious to fish and wildlife and shall conform to state watcr quality standards. Effects of the ProposedActivides on these Policies The plants comply with all applicable environmental regulations. They will be required to continue to do so under any new ownership, pursuant to applicable en ironmental regulations. Why the ProposedActivities ore Consistent IP3 and JAF operate in compliance with all applicable environmental regulations. They will he required to continue to do so under any new ownership. The proposed activity is. therefore, colisistent with this Policy.

e. State air quality permit or certification? (4 l. 43)

• Policy 41: Land use or development in the coastal area will not cause national or state air qualily standards to be violated.

Effects of the ProposedAcdvities on these Policies The proposed sale will not, in and of itself, involve a new land use or development in the coastal area that could aflect national or state air quality standards. Wlhy the ProposedActivities are Consistent The sites currently operate in compliance with all applicable air qutality regulations. They will be required to continue to do so under any new ownership. "libereforc. their proposed sale is ct'l.istestl with Policy 4 1.

• Policy 4 3: Land use development in the coastal area niust not cause silte generation of significant amounts of acid rain precuriors: nivrates and sullaies.

Effects ofthe ProposedActivities on these Policies The proposed sale will not, in and of itself, iný olve anty new laud use development in the cis-'tal z.me. Why the ProposedActivities are Consittent IP3 and ,AF operate in compliance with all applicable environmental regulations. and wilt be required to continue to do so under any new ownership. Furthermore, the proposed activity will not, in and of itself, involve any new land development in the coastal areat;. The proposed activity, thO'efore, is consistent with this Policy. ETR0000 2 6

M(CVTOMX SfA'I EP£ARfN(ETOf $TAT( CUSTAL HuWEPOT pARAN Coastal Aselsoiant Forn A. INSTtTIO$S tPlease prIet or type all sitrs.irl

1. sate Agenwl*e s stt c tete .this CAF for protioIs atons which are stbi. to PFrt 600 of Title IP of the 3

            )lTC2A.          Trill    Asasesismt          is      IntlaOd           to lpcftemet oLtr Information used Iy                                         I     State     gEnCT In smaking a daterelmatlwn             of     significance pirsujaU t to the State tnvl.rrwmatet                                        ushtity avyiew Act tsee 6 XYCre, Part 6IF.

If It Is detoruIned that A PfMSed Actiaon will rot hase a significant (t(act On the nifaimeil, this asusessm Ii Inlwde to esiIst a state a90w4 In C4 ling ith tihe corttiicsttI i 0` ir*Itwlfmt O(f 19 kfSR Section 600.4.

2. If "y otsitlio Itn Secttion C on this foamIo marttetr."yes', tha the popmed action am?&(fact the sdul-esant of the crestea polles cuntained in Article 12 of Uth tEamtisv Law. Thua. the OttlCin shj**d be bsatyled itr mor. 6etalt erd. If t*etasia5. W4fied prior to either tt mekaing a cgrtificsttel of wcsaistency pu.raut to IV MYheStPart 603 or. fbI saking the findings regwred uda Sotk. 6 IaCp. SectIi 41r.9. If the actian Is one for 6AIch in rwtirtama l epact staltml.

mat Is being prepared. If ant action canot be certilti,.d a Ca3liuent with Ute COAXtIA policies. It shellt nro be u*dertken.

s. ator. aisr*reng thse qmtisa Ift Sectlio C, the praparer oa this (oam shoJud review the coostat poticies cntained In 19 ayrA Sectio 600.5. A propOsed ctlion shwuld be evaluated as to its signtificant baeficlat and adverse effects uon the coastaL arse.

1. GECReIPTtIC OF PROPOSED ACTIO

1. Twop of srate agency action [Check aIpropriat reposel:

fa] DrrectLy ~dertaken lt.g. calitalt t titr'tetion. plasino activity. agency regu*atLion. ted IrarsactionIX (bl fir..tlalt Alsioanra te.g. grant. toan. stI5dy ___ Ci Permit. Ilcanso. certiftcatton __ t

2. Oencribe natua end extent of action: Sale of the Indisan Pointi .3 and .,Lmes A. Fji*-1.itrick

3. t MP3tn or Metns er Buchanlan Bleakloy Ave. L Broadway ZAF: Oswego Lycomiing -68 Lako hosd East.

County city. h*on of vittai Street or Site pescivttlon

4. It an appli*ation for the prs'ped action haz oen filed wt.h the state abgesy. the followilg IsfosMtitn shatt be vrosided.

tat maem of mlitcent:New York Power Authority ,Power Authority) fbi ihaliingraress, 1-13 main Street. Whiie jlasins, MY IMT( itt tot-WO Nm%~  : A re e I 141 " a-l;4tl' Id) lstae *g olitaiItiWS t w. _ _:

5. WItt the actio na directly undertaken. rayire fuiding. of MaoriosL tvf a faeisrat agacy?

1ea X o_ if tamV. -^Och lodasel agency ) f Ciatt H'quLsS'ry Ctntessilon C. OYUTAL ASttS1190.fiOhac& eiller 'Von or 'Mi for beaenof thnefisltoesa geSitalcm

1. Wdililisa prcead action be locaLtedin. or caittg.w.m to. or have,a slgnificent affect Woas any a the readur¢e areas Identifled on the w4et&t Orea"as:

X tal Slgnfilcant fish or 0Wtdt1Pa hitatet? .............................................. fbi Scatic rvaggree of itaatwida sgnoifiCtiuai ................................................ X fci I.Otmot Wgissulswo i 1-41 . .............................................................. X

2. witt tie proed action hies a lfnilricant effect Wpon ta) . ,'rcist or rec,, attonat faa of rliA a'd wfIdlife rvocaeal e................................ X tbh ScAnic quality of thie's tat wivrormit? ................................................... IC ict O-eoloant of Cuttsg, or emittng water depevio umeeT ..................................... X Cdal Operetim of On mjor port? ......................................................

o majlte i to) Lrtd ad water es wihitn the state's miall iartot .........  ; ............................. . IIl Exsatlq or patenaiSal pbtlc roereettii oppissttteif ....................................... i (lt Struf:rts e. liteor districts of hltstic, mrcl togtcat or cjltural signpifican-to Uwi tt or titian ...................................................................... ETR000027

t.j 3. Witt the prp ad ctioniAWItioV. CC C.sist I~ An Of tt4 COitO..Irq:t (&I P?251158&iteration of two (21 acres or mbsof low *in@. sawq the .e,2ne. lard w~er water or coa*KM 4etrs ............................... .................................. __ fbi PhYSIC~tal teraionIa of fiýIS) MFG5Ort. 0?fa Of ("r located w1J*-Je'C In tht C04u1281 (Id Evson uat mfeisting "tick services or Infrastructure in Uwe..2Citd 0? 20. ig~sjtt, (d) Enry(giiyf 1ett 0 Article VII or Vill Of tro PLblic 3.aU$4Il 2.............. X (1) Rd~tlOf eisti og otential FL611.~ Wuaj to or *ce~ ln dow I ............. 191 t dwge als I we f itto-agW, tanis located on the stoell,.. or ~de water? ..... IN ovl Iwihi Idosivutetd flowd or erwosio huarO &rea? ..........-...... 111Dae~osut n ab 4ac

                                           .
                                          &n,     burlrl    Wanudor *Uwa mwatt featur "t0 Provides prtotk  o agans  artwt            o    roio................................              I......................L  i If  quston n Scton        13VIWijerld -?eP. AMD       either of the I`ettoMIRg0.0 CalditotOM it eeL:

Secticon 1. 1(a) or 4. 1(b) I I dWAed; Lr

                                 $acion RA  S(IsW 25 dcked AmoSS i's wioted              2-rR m OOPf CtheCiOMPtetdCoastal MsA3%u            2 fare ibaII be tobwitted to; Paw,York 32..

tte rtmnt2 of state couajut manaewgnt Prugro. 162Waeshington Anw Albany. A-e. ?otS 22232 ifsxsaeOr furwii InforwAtion is neededto ecmvtete ths fore. Please call owt Dooortmantof Mote at 2328) C.AV RADDLfCrm~IPMFOKATIi ETROOOQ2 8

SALE OF THE INDIAN POINT 3 & JAF NUCLEAR POWER PLANTS New York State Department of State Coastal Management Program Coastal A.sessment Form - Additional Information The proposed sale of the Indian Point 3 and JamesA. Fit:PatrickNuclear Power Plantsinvol'es the transfer of New York State Department of Environmental Conservation permits (e.g.: the State Pollutant Discharge Elimination System Permit), as well as the Nuclear Regulator), Commission s license, from the seller to the buyer. Therefore, as both Federal and State approvals will be transferred.NYPA has completed both the Federal and State coastal assessment forms, NYPA has first discussedthe possible effects of the proposed sale un New York State's coastal policies,per the Federal Consistency Assessment Form. Per the State's Coastal Assessment Form. the following discusses additional Coastal Management Programpolicies not addressed in the discussion of the federalform. C. Coastal Assessment (Check either "Yes" or "No" for each of the following questions)

3. Will the proposed action involve or result in the following:

g. Sale or change in the use of state-owned land located on the shoreline or under water?

Policy IS: To safeguard the vital economic, social and environmental interests of the State and or its citizens, proposed major actions in the coastal area must give full consideration to those interests, and to the safeguards which the State has established to protect valuable coastal resource areas. Effects of the ProposedActivities on these Policies The proposed activity is the sale of IP3 and JAF. I"ht prospective buyer will acquire the sites in compliance with all applicable environmental laws and regulations. The plants, once under new ownership, will be required to continue to comply with these laws and regulations. The State's economic, social and environmental interests will, therefore, be safeguarded. As the sale will return lands not subject to real propert taxation to the tax base, economic benefits may in fact result. Why the proposedActivities are Consistent Since the State's economic, social and environmental interests will be safeguarded, and certain benefits may be realized, the proposed activity is consistent with Policy IS. (h) Development within a designated flood or erosion hazard area? This was previously addressed in the Federal Consistency Assessment Form under C.2.b. In this discussion, the proposed activity was found to be consistent with Policies II, 1Q and 17, ETROO0029

KI';~ ADDENDUM TO ENVIRONMENTAL ASSESSMENT Proposed Action: The sale of the Indian Point 3 and 0 The James A. Fitzpatrick Nuclear Power Plants The Environmental Division has prepared an environmental assessment of the proposed sale of the Indian Point 3 (IP3) and James A. Fitzpatrick (JAF) Sfacilities. This addendum summarizes the review process and the results of that process. The review and assessment drew upon the knowledge and experience of the Environmental Division staff, consultation with other staff throughout the Authority and review of numerous documents. The review process was initiated in November 1999 and proceeded concurrently with the sale negotiations. An Environmental Assessment Form (EAF) waL completed on January 6, 2000 and transmitted to various involved and interested agencies along with the Authority's indication of intent to assume the role of Lead Agency for the purpose of conducting the review required by the State Environmental Quality Review Act (SEQRA). The Authority received two r'eplies but no objection to the assumption of Lead Agency status. The Department of State had no objection to the Authority assuming the role of Lead Agency. While Andrew J. Spano, Westchester County Executive, and Robert J. Bondi, Putnam County Executive, did not object to the Authority being designated Lead Agency, they urged that safe plant operation, public safety, impacts on local communities, impacts on existing contracts, the Decommissioning Fund, spent fuel st 6 rage and greenfielding be considered in the review. The general terms of a proposed transaction with Entergy Corporation (Entergy) were finalized on February 14, 2000 and announced to the general public that same day. On February 29, 2000, in response to an unsolicited offer by Dominion Resources Inc. (Dominion), the Trustees agreed to accept further bids and make a timely decision thereon. Subsequently. under a process established by the Authority, further bids were invited from all interested purchasers: Once it was established that there were no other bidders, Entergy and Dominion were given until March 10, 2000 to refine'or improve their. offers. The proposed transaction is described in the President's Memorandum to the Trustees dated March 20, 2000, on the "Proposed Agreements re: Sale of Indian Point 3 and James A. FitzPatrick Nuclear Plants" (President's Memorandum) and consists of the sale by the Authority of IP3 and JAF to a wholly-owned subsidiary of either Entergy Nuclear Corp. (hereafter collectively referred to as Entergy) or to a wholly-owned subsidiary of Dominion Resources Inc. (hereafter collectively referred to as Dominion) pursuant to a Purchase and Sale Agreement together with its associated Exhibits and Schedules (hereinafter, "the P&SA"). The proposed transaction was reviewed to determine ifthe final ETROO0030

proposal was consistent with the January 6, 2000 analysis. As a result of this review, the Environmental Division recommends that the Trustees find that the proposed action will have no significant effect on the environment and, accordingly, that no Environmental Impact Statement need be prepared under SEQRA in connection with the proposed sale of IP3 and JAF. This recommendation is based on the following: A. Existing Conditions

1. Physical Facilities IP3 is located on a 102-acre site adjacent to the east bank of the Hudson River in the Village of Buchanan and the Town of Cortlandt in Westchester County. It is a part of a larger, 235-acre site that also hosts the Indian Point I and Indian Point 2 nuclear facilities owned by Consolidated Edison Company of New York, Inc. (Consolidated Edison) to the north of IP3. The site is about 24 miles north of the New York City boundary. A description of the site, including the real property and improvements thereon, is contained in the P&SA. Electric power is produced through the use of a pressurized water nuclear reactor. The reactor has a Net Dependable Capacity rating of 970 Megawatts (MW).

JAF is located on a 702-acre site along the south shore of Lake Ontario in the Town of Scriba in Oswego County. The site is immediately to the east of the land upon which the Nine-Mile Point I and Nine-Mile Point 2 nuclear facilities are located. The Niagara Mohawk Power Corporation pretently operates both of these facilities. The site is about 7 miles east of Oswego, 36 miles northeast of Syracuse, and 135 miles east of Buffalo. A description of the site, including the real property and improvements thereon, is contained in the P&SA.. Electric power is produced through the use of a boiling water nuclear reactor. The reactor has a Net Dependable Capacity rating of 820 MW.

2. Operations The Authority acquired IP3 in 1975 from Consolidated Edison after the completion of substantially all construction. IP3 commenced commercial operation in August 1976. In 1998, IP3 generated 7.7 billion kWh net of electricity. In 1999, the facility completed the shortest re-fueling outage in its history and generated 7.27 billion kWh net of electricity, operating at a capacity factor of 86%.

2 ETROO0031

License No. DPR-64 was issued to Consolidated Edison by the Nuclear Regulatory Commission (NRC) to operate IP3 on December 12, 1975. The license to or~erate was tr ed to the 0- Authority on March 8, 1978. The license expires on December 12, 20135. n dditr the"NRC license, operation of the plant is subject to various federal and state permits and registrations. A list of those permits and registrations is part of the P&SA. Pursuant to the permits and registrations cited above, the IP3 facility discharges substances to the air and water. While the NRC regulates the emission of slightly radioactive material, the New York State Facility Air Permit governs releases to the air that may occur from the auxiliary boilers and diesel generators. Discharges into the surface or groundwater are regulated under Corps of Engineers Permits and the Consolidated Edison/Authority Q) joint State Pollutant Discharge Elimination System Permit (SPOES Permit) The Authority acquired JAF in 1974 while it was under construction by Niagara Mohawk Power Corporation. JAF commenced commercial operation in July 1975. In 1998, JAF gogenerated 4.9 billion kWh net of electricity. In 1999, the facility generated 6.57 billion kWh net of electricity, operating at a capacity factor of 93.5%. License No. DPR-59 was issued to the Authority by the NRC to operate JAF on June 4, 1977. The license expires on October 17, 2014. In addition to the NRC license, operation of the plant is subject to various federal and state permits and registrations. A list of those permits and registrations is part of the P&SA. Pursuant to the permits and registrations cited above, the JAF facility discharges substances to the air and water. While the NRC regulates the emission of slightly radioactive material, the New York State Facility Air Permit governs releases to the air that may occur from the auxiliary boilers and diesel generators. Discharges into the surface or groundwater are regulated under Corps of Engineers Permits and the Authority's SPDES Permit. Both the IP3 and the JAF reactors are fueled by uranium enriched with U23 1. Each reactor consumes approximately 30 tons of fuel each year. The Authority has a contract (with the U. S. Department of Energy (DOE]) to dispose of the spent nuclear fuel (SNF) at a centralized repository to be constructed by DOE in order to receive and to provide permanent storage for SNF. DOE has indicated that it expects this facility to be completed by approximately 2010. Pending completion of such a repository, SNF will be stored on-site at JAF and IP3. IP3 has sufficient capacity to accommodate the SNF expected to be produced there 3 ETR00003 2

prior to transfer to the federal repository in 2010. The FSAR lists the SNF pool capacity as 1345 fuel assemblies. However, ifthis date is extended, planning for on site dry cask storage at IP3 may be necessary. JAF does not currently have sufficient capacity to reach 2010. The JAF SNF pool can contain up to 2797 assemblies. However, the Authority is currently in the design stage for construction of an independent spent fuel storage installation (ISFSI) at JAF to maintain SNF storage capability at that facility. The ISFSI is expected to be completed by 2001, when it will be required to provide temporary storage for JAF's SNF.

3. Employment The Authority currently employs approximately 1650 full and part time employees at 1P3, JAF and its White Plains headquarters in support of the facilities. Nearly one-half of the staff is represented by unions. The collective bargaining agreements that address terms and conditions of employment for represented personnel at JAF and represented security personnel at IP3 are not scheduled to expire until June 30, 2001 and October 1, 2000, respectively. The collective bargaining agreement covering the remaining represented personnel at IP3 expired in January of this year but, in accordance with public sector labor law, the terms of that expired agreement remain in force until a successor agreement is negotiated. Benefits such as medical, dental and hospitalization insurance, vacation and sick leave allowances, deferred compensation and pension plans, among other things, are part of the P&SA. The P&SA provides for the purchaser to offer employment to all Authority employees who devote virtually all of their working time to support the nuclear plants. In addition the P&SA provides for the purchaser to furnish all transferring Authority employees with a benefits package that is identical in all material respects with the Authority's benefits package. For non-represented employees the purchaser will maintain the Authority's benefits package for at least one year beyond the closing. For represented employees the purchaser will recognize the employees' union representative, grant seniority to transferring represented employees for their years of service with the Authority and assume the collective bargaining agreements and observe the terms and conditions of employment provided for in them until their expiration dates.

4. Local Services 4

ETROO003 3

At IP3, the Authority utilizes the Village of Buchanan sewage treatment plant under an agreement between the Village and the Authority. Water also is supplied by the Village. Water is supplied to JAF by the Town of Scriba and wastewater is treated by an on-site treatment plant. While the facilities themselves have plant security and fire protection, local police and fire organizations provide backup for on-site activities and participate in emergency plans and exercises. Plant employees generally reside within reasonable commuting distances in the communities and areas surrounding the facilities. Due to the nature of the Authority, no local property taxes are paid on either facility.

5. Power Sales Power from the IP3 facility is used to meet the demands of the Authority's customers in Southeastern New York State. IP3 is the principal power source for 111 government customers in New York City and Westchester County. all of which use the electricity for public buildings, schools, subway and commuter trains, street lights, and various other public facilities and purposes. Since the Authority does not have a guaranteed service area, its power price has to be competitive with the regulated utilities, independent power producers, and on-site generation.

About 665 businesses and non-profit organizations receive electricity from JAF. All of JAF's power is sold to businesses, utilities (including the Long Island Power Authority) and Muni/Coops. New York State recently established the New York Independent System Operator (NYISO). The NYISO exercises operational control over most of the State's transmission facilities to maintain short term reliability, administer the NYISO Transmission Tariff and implement and operate New York's Open Access Same-Time Information System (OASIS). An Operating Committee establishes and oversees procedures for coordinating NY Power System Operations. A Business Issues Committee establishes procedures for the efficient nondiscriminatory operation of electricity markets coordinated by the NYISO. The NYISO operates day-ahead and hourly markets for energy and ancillary services. It is within the context of the ISO system that power will be marketed and sold from both IP3 and JAF. B. Proposed Action 5 ETR00034

As noted, the proposed action encompasses the sale of IP3 and JAF. The sale includes all the assets listed in the P&SA. It also includes the transfer of nuclear fuel. In addition, a fixed price power contract will be entered into between the purchaser and the Authority for output from each of the facilities. Finally, to assure delivery of power, the Interconnection and Operation Agreement (Exhibit H of the P&SA) provides for JAF's connection to the Authority's transmission system. C. Potential Environmental Impacts

1. Physical Environment Physically, there will be no difference in facility operation before and after the sale. No operational or physical changes will be made. Virtually the only change. Will be a substitution of upper management. The staff, the operating procedures and the legal requirements for operation will not change.

The P&SA lists the permits that will be transferred to the purchaser. The purchaser will accept these permits subject to all existing conditions. Since the permits are renewed periodically, the potential for a change in conditions exists regardless of who operates the facilities. However, before any significant revision can be made to state or local permits, the requirements of SEQRA would have to be met and approval received from such permitting authorities. Any revisions to federal permits would be subject to the requirements of NEPA, along with any permit requirements. The NRC has determined that the mere transfer of ownership of a facility does not create significant environmental impacts and for that reason has categorically excluded such actions from the NEPA requirements. One potential issue that could arise apart from the regulatory requirements is the impact of actual operation on emissions from other facilities. Operation of the IP3 and JAF facilities can displace the burning of 900 million gallons of oil or 6.6 million tons of coal with a concurrent reduction in NOx, SOx and other emissions of critical concern. On the other hand, the reduction of the negative aspects of other forms of energy production is partially offset by the generation of waste products such as SNF and low-level radioactive waste at nuclear facilities. Entergy's ability to operate the two facilities was scrutinized to assure that operation of these facilities continues at the level that the facilities have attained in recent years under Authority supervision. Entergy currently operates six nuclear units at five 6 ETR000035

plant sites: Arkansas Nuclear One Units I and 2 near Russellville, Arkansas, Grand Gulf Nuclear Station in Port Gibson, Mississippi; River Bend Station in St. Francisville, Louisiana; Waterford 3 in Taft, Louisiana; and Pilgrim Nuclear Station in Plymouth, Mass. The six nuclear units represent three of the four major U.S. nuclear steam supply systems and include three General Electric boiling water reactors, two Combustion Engineering pressurized water reactors, and one Babcock and Wilcox pressurized water reactor. In 1998, Entergy's nuclear units safely generated over 38 million megawatt-hours of electricity, providing about 40 percent of Entergy's generation with a capacity factor of approximately 90 percent. Likewise, Dominion's ability to operate the two facilities was also scrutinized to assure that operation of these facilities continues at the level that the facilities have attained in recent years under Authority supervision. Dominion, through its subsidiary Virginia Power Co., currently operates four nuclear units at two plant sites: North Anna Units 1 and 2 near Mineral, Virginia, and Surry Power Station Units 1 and 2 in Surry, Virginia. In 1998 and 0 1999, Dominion's nuclear units average capacity factors were 91.7 and 93.8 respectively. As noted above, the Power Purchase Agreement will not cause any change in the current operational characteristics. Energy, in the first instance, will be supplied from the output of the facilities. If the facilities are unavailable, power will be provided from other non-specific sources (i.e., market purchases). Since the transfer is also made with the expectation that the facilities will continue to operate at their present levels and that existing alternate sources will backup the facilities, no change in the type of source for the power (other than normal market selection) will occur. Therefore, no measurable localized impacts on air quality or water quality will occur nor will there be a measurable change in systemwide environmental impacts.

2. Public health and safety.

The proposed transfer will be subject to NRC safety review and approval. Because the staff will remain, the facilities will continue to operate with personnel that have intimate knowledge of the facilities and have proven that they can operate these facilities safely. Moreover, the expertise of the facilities' existing staffs and support personnel will be supplemented by the expertise that the ultimate purchaser has in the nuclear area. Virtually the only change will be management at the highest corporate levels. A 7 36 ETROO00

condition of the selection process for potential purchasers was a record of experience and safe operation of nuclear facilities by the purchaser, In the case of both potential purchasers, there exists extensive experience with the operation of a number of nuclear facilities. The Environmental Division reviewed both purchasers' general industry reputation and public critiques along with NRC records related to their facility operations including inspection results, SALP reports, notices of violations and their resolution and other information. Based on this review, the Environmental Division concluded that no reduction in safety would occur if the facilities were transferred to either proposed purchaser. While the Authority's review concluded that there is an acceptable level of financial assurance that both purchasers' operating companies will have the financial ability to operate the facilities, the Authority is not the final judge. The sale, as noted, is contingent on the transfer of the facilities' NRC licenses to the operating companies. These transfers will require the approval of the NRC under 10 C.F.R. § 50.80. In determining whether to approve a transfer, the NRC considers the same information with respect to the identity and technical and financial qualifications of the proposed transferee as would be required ifthe application were for an initial license. After appropriate notice to interested persons and observance of such procedures as may be required by the Atomic Energy Act or regulations or orders of the NRC, the NRC will approve an application for the transfer of a license, only if it determines (1) that the proposed transferee is qualified, including technically and financially, to be the holder of the license and (2) that transfer of the license is otherwise consistent with applicable provisions of law, regulations, and orders issued by the NRC. The potential impact of the sale on plant decommissioning-and SNF storage was also examined. As part of the agreement, to the extent the Authority retains decommissioning responsibility, discussed below, the purchaser's affiliate would be required to decommission the facility for a fixed price. Moreover, the P&SA and related documents call for the Authority to retain its current Decommissioning Trust Fund, presently containing over $600 million, until at least the end of each facility's license or early dismantlement. It is estimated that at the time of license expiration the fund will have approximately $1.9 billion available for decommissioning and greenfielding. Analysis indicated that this amount would be sufficient to decommission, including greenfielding, the facilities at license expiration. The agreement, therefore, provides a mechanism to assure that sufficient funds will be available to decommission the facilities after the transfer by the 9 ",. 4 ETROO003 7

Authority. If there is an early dismantlement of a facility, the purchaser's affiliate would be responsible for decommissioning the facility utilizing amounts in the Decommissioning Fund and their own funds. Financial assurance, both to the Authority and the public, is also provided not only by the retention of funds by the Authority but by a contractual requirement that the purchaser supplement such funds if necessary. If,prior to decommissioning, NRC financial requirements are imposed that require funds in excess of amounts available for decommissioning from the retained Decommissioning Fund, the purchaser is required to deposit money in a separate fund to meet the higher monetary assurance requirement. Decommissioning, whether by the Authority or by the purchaser, must comply with all applicable NRC requirements in effect at the time (including any demolition, site remediation and restoration requirements) and will be subject to public scrutiny and participation in accordance with both NRC procedures and NEPA. Re-use plans for the site will also be subject to all applicable state and local land-use and environmental controls, including SEQRA. It is likely that private ownership of the IP3 and JAF facilities will subject future re-use to a higher level of local control than would be the case iftitle remained with the Authority. The generation of electricity at a nuclear power plant entails a process by which nuclear fission converts mass to energy. The "fuel" is composed of solid, ceramic-like pellets of enriched uranium, slightly larger than pencil erasers, stacked atop each other and sealed in strong metal tubes, called fuel rods. The rods are approximately 12-15 feet long, and are bundled together in groups to form nuclear fuel assemblies. These fuel assemblies., when placed inside a nuclear reactor where the fission process takes place, produce heat that is used to generate steam and make electricity. The reactor at JAF contains 560 fuel assemblies while the one at IP3 contains 196. Currently both reactors are "refueled" every two years. During the "refueling", approximately one third of the assemblies are replaced with new assemblies. As a result, each assembly is resident in the reactor approximately six years. After that time, it no longer economically produces usable heat. The assemblies that are removed from the reactor are referred to as spent nuclear fuel assemblies or SNF. Upon removal from the reactor the SNF is stored in the SNF pool at each site. The SNF pools are steel-lined concrete basins containing water. Besides helping to cool the spent nuclear fuel, water provides protection from radiation for plant workers and the public. Spent nuclear fuel assemblies can be stored in a "dry" environment aboveground using heavy containers or casks made 9 I'M"k ETR000038

of steel and/or concrete. Casks are either placed upright on concrete pads, or stored horizontally in metal canisters in concrete bunkers. Like pool storage, dry storage has been proven safe but is not intended to be a permanent solution. Dry casks are large, rugged containers made of steel or steel-reinforced concrete, 18 or more inches thick. The casks use materials like steel, concrete and lead-instead of water-as a radiation shield. Depending on the design, a dry cask can hold from seven to 56 12-foot-long fuel assemblies. The NRC has approved several designs for use by utilities. The casks have a 20-year license. After 20 years, they must be inspected, and with NRC approval the license could be extended. Various dry cask storage technologies are being successfully used by utilities at the present time. The approved dry-cask designs use one of three storage systems. The first system stores used fuel in steel canisters that are inserted horizontally into a steel-reinforced concrete vault. The second uses steel canisters placed vertically inside a concrete storage building. Each of these systems uses the concrete storage containment as a final radiation barrier. The third system uses vertical casks made of steel or reinforced concrete that stand outside on a three-foot-thick pad of reinforced concrete. This is the system proposed for use at JAF. To make room in the fuel pool for the hot and highly radioactive assemblies removed from the reactor, the oldest stored fuel-which has been cooling in the pool for at least 10 years-is transferred to dry casks. Loaded casks are filled with an inert gas, sealed, and stored either on reinforced concrete pads or inside steel-reinforced concrete bunkers. The casks are designed to withstand natural disasters such as tornadoes, hurricanes and floods and to prevent the release of radioactivity. All of the designs are passive, in that they require no mechanical devices, for cooling and ventilation. With respect to on-site storage of spent fuel, the Authority's Contract DE-CRO1-83NE44407 with the DOE for the permanent disposal of spent nuclear fuel and high-level radioactive waste will be assigned (with no changes) to the purchaser. The Authority currently owes approximately $160 million dollars for fuel burned prior to April 7, 1983. The Authority will retain the funds for this payment and pay them to the purchaser only when required by the DOE contract. Even with the DOE's present schedule for receipt of spent fuel, additional oh-site storage is required and is being planned for the JAF facility. Alternative techniques have been examined previously and, where feasible, employed to increase the capacity of the SNF pool. Both 1P3 and JAF have re-racked their 10 ETROO0039

pools to the point that no additional space can be gained based upon current technology. Present planning provides for the additional storage through the use of dry cask storage. A SEQRA assessment was performed prior to Trustee approval of capital funds to engineer, design, procure and construct an Independent Spent Fuel Storage Installation (ISFSI) at JAF. The assessment resulted in a Negative Declaration that was finalized on April 22, 1998. The need for an ISFSI is independent of plant ownership. If additional storage is not available for the SNF at the time the SNF pool is filled, no SNF can be off-loaded from the reactor. Therefore, continued operation, no matter who the owner may be, will require the creation of additional storage space. The Authority's design contract for the ISFSI will be assigned to the purchaser with the expectation that the purchaser will continue development of that facility in order to assure continued operation of JAF in substantially the same manner as the Authority. NRC approval is required for the storage casks included in the ISFSI. Moreover, NRC has made a generic determination that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the licensed life for operation of that reactor at its SNF pool or at either onsite or offsite independent spent fuel storage installations (10 C.F.R. § 51.23).

3. Customer Needs As indicated above, the Authority will purchase energy, installed capacity and ancillary services from the facilities subsequent to the sale. The Authority will purchase electricity from the two plants for resale to customers through Dec. 31, 2004, with the opportunity for additional purchases beyond that date.

Customer rates and allocations will be unaffected by the sale. The Authority will receive products and Services at prices fixed in the agreement. They will include energy and installed capacity from the two plants, as well as 'ancillary services" needed to support the transmission of electricity while maintaining reliability of the statewide system. Under the proposed Power Purchase Agreement, the Authority will purchase all electricity produced at IP3 throughout the term of the agreement at a price of 3.6 cents per kWh. JAF power will be purchased at 3.2 cents per kWh and resold to the Authority's customers under its Municipal Economic Development, High Load Factor, Economic Development and Power for Jobs programs. E O

These amounts will decline over time from 375 MW for any part of 2000 to 360 MW in 2001, 303 MW in 2002 and 255 MW in 2003 and 2004. The Authority's share of JAF production will be "first-out-of-the-plant," meaning that the Authority will be served before other customers when output is limited. When either plant is not running, or is operating at levels insufficient to meet the Authority's needs, the Authority will obtain replacement supplies on the open market or from its own resources. Regardless of plant performance, the Authority will be assured that its costs for replacement energy up to specified minimum entitlements (equivalent to 85 percent of designated capacity levels) will be no greater than the prices set in the agreement. This will be accomplished by the purchaser compensating the Authority-subject to certain adjustments-for the difference between the cost of energy in New York State markets when a plant is deficient and the lower energy price in the agreement. Calculations of energy supplies and any payment obligations will be keyed to two periods. The first will extend for two years from the closing date of the agreement, while the second will run from that point through the agreement's termination on Dec. 31, 2004. If the amount of energy supplied by the purchaser in the first period exceeds the 85 percent minimum for a plant, the difference-up to 5 percent-will be carried over and credited toward the second-period requirement. If the purchaser falls short of the minimum in the first period, it will be able to defer up to 5 percent of the total energy requirement to Period 2 without financial penalty. The 85 percent requirement at IP3 will be based on capacity levels of 985 MW for the winter months and 970 MW for the summer. The summer amount is less because higher Hudson River water temperatures reduce the plant's output. At JAF, the 85 percent entitlement will be based on the capacity levels noted previously. If the Authority anticipates the need for purchases from either or both plants after the agreement expires, it will notify the purchaser by the end of 2003 and the two parties will begin good-faith discussions on price and other terms. The Authority will give the purchaser an opportunity to submit sale proposals ifthe Authority intends to replace its supplies from either plant at specified levels after the agreements expire. The purchaser will notify the Authority when the amount of energy available from either plant for the post-agreement period falls to designated amounts (200 MW for JAF and 500 MW for IP3) and will give the Authority the opportunity to discuss purchase of this energy. 12 ETR000041

Under a separate agreement, the Authority and the purchaser will share equally the difference between actual market prices and agreed-upon forecasted prices for 10 years after the agreement expires. This will enable the Authority to realize benefits if market prices are much higher than expected. As long as the facilities produce power, power purchased by the Authority from the units will be used to satisfy the Authority's customer load. If the facilities are not in operation, the difference will be made up from other Authority resources or the market, as would be the case if the facilities were to remain with the Authority. Moreover, if a premature shutdown were to occur, replacement power would be from the market. The power sales provisions assure the Authority a fixed purchase price for power. They also provides a mechanism to negotiate continued supply agreements. The price furthermore enables the Authority to provide power to its customers consistent with the terms of their contracts. In summary, the proposed agreement will permit the Authority to continue to meet customer requirements and will not create any significant incentive for the purchaser either to increase or decrease the facilities' operations in a manner materially different from the Authority's current practices.

4. Personnel The P&SA minimizes the disruption in employment. The sale will impact approximately 1650 Authority employees. The purchaser, however, will offer the same or similar jobs to all these employees. Over time, some employees will realize greater opportunities under the mantle of a widespread nuclear organization, while operating efficiencies could affect the positions of others. However, even if the facilities remained und.er Authority control, the pressure for such efficiencies in a competitive market would exist. Upon transfer, the employees will retain benefits equivalent to those that are provided by the Authority. Among other things these employees' vacation and sick leave balances will transfer with them to the purchaser. Moreover, the other benefits that they receive, such as medical, dental and hospitalization insurance, will remain in force for at teast one year after the closing in the case of non-represented employees and for the term of their collective bargaining agreement for represented personnel. The Authority has also instituted a program to provide each non-represented employee with $2000 in transition pay upon their transfer to the purchaser. The Authority has offered the union 13 ETROO004 2

representatives of the Authority's bargaining unit personnel a similar payment. In view of the foregoing there will no significant employment impacts associated with this transaction. While change itself can be considered an impact, it happens regardless of the alternatives taken. In the case .of the transfer of these facilities, the programs developed (continuation of compensation and benefits and assumption of union contracts) allow for a smooth transition from public sector employment to private sector employment.

5. Local Communities Since the plant staffs will remain in the same positions following transfer of the facilities, no "boom/bust' effect will arise.

Operations at the facilities will continue as under Authority operation, and services now provided by the Authority will continue to be provided in the same or similar manner by the purchaser. The purchaser will negotiate with the localities for mutually beneficial services in the future. All the agreements enteredinto in connection with emergency planning will remain the same. Since the individuals who currently interface with the local communities will continue in the purchaser's employ, a smooth transition should result. The P&SA provides for the transfer to the purchaser of (1) all right, title and interest of the Authority in the property and assets used or usable in providing emergency warning or associated with emergency preparedness, and (2) all rights that the Authority has under the contracts and agreements associated with emergency preparedness. One change will be the tax status of the facility. As a private entity, the purchaser will be subject to local property taxes. These will offset contributions that the Authority has traditionally made to local communities. The increased tax base, when spread across the entire local community tax base, will not have a significant socio-economic impact on the community. The Authority, as well as other licensees of nuclear power plants in New York State, provides $585,000 a year per nuclear power plant to the state under legislation requiring annual payments from plant licensees. These funds are used to help fund the State Emergency Management Office and provide assistance to the counties in the IP3 and JAF plant areas. This state funding requirement is expected to continue after the transfer of the plants. The Authority also provides funding directly to the surrounding counties for items not covered through the-state, such 14 ETR000043

as a coordinator for Indian Point Affairs (Four-County Coordinator position), bus driver training, and reception centers. The Authority, with its neighbor utilities, also coordinates and funds public education programs, including the annual printing of emergency planning booklets. The Authority and its neighbor utilities provide annual radiological training for their host counties as well as support medical drills for the local communities. There is no expectation that these activities or the funding therefor would diminish or change after the transfer of 1P3 and JAF to the purchaser.

6. Energy Conservation and Renewable Energy Sources As part of its customer services, the Authority has developed an array of energy programs involvirg conservation, renewable energy sources, new technology generation sources, and energy efficiency. The transfer of the facilities and the power purchase provisions of.the Power Purchase Agreement provide money and price stability that will permit these programs to continue and, perhaps, to expand. It is expected that the proceeds of the plant sales will be used in part to enhance and expand the Authority's initiatives in these areas.

D. Consideration of Alternatives The proposed action presented the Authority with three viable alternatives. Two of the alternatives involved sale of the facilities and one involved continued operation by the Authority (the no action alternative). As discussed above, actual on-site and system-wide environmental impacts vary little under any of the alternatives. Both proposed purchasers would assume ownership and operation of the facilities in exactly the same manner as exists under Authority ownership. Both have provided financial assurances to the Authority and would be required to provide financial assurance to the NRC for continued safe operation and decommissioning of the facilities. Both, like the Authority, have long term experience in the operation of nuclear facilities. Both would operate the facilities with essentially the same staff that works for the Authority. Both would operate the facilities under the same legal permit conditions as the Authority now does. The biggest factor that will affect long term future operation is the competitive market system. That system will dictate how and when these facilities operate in the future. That future, however, besides being uncertain, applies equally to all the alternatives. Moreover, 15 ETR000044

                                                                                          ~1 to the extent that the competitive market dictates physical or operational changes at the facilities that affect safety or the environment, they will be subject to federal and/or state review and approval.

The transaction has been structured to minimize or eliminate any adverse environmental, safety, social or economic impacts that could be associated with the sale of the facilities. The agreement to operate the facilities under the terms of all existing regulatory permits assures continued operation in an environmentally sound and safe manner. The agreement to employ all the workers now responsible for operation of the facilities reinforces this continuity of operation. The employee agreement also virtually eliminates the impact of the transfer on the local community and, by providing benefits similar to those under the Authority and a monetary incentive, minimizes impacts on the work force. The provision for a guaranteed power supply over the period of the Authority's existing contracts likewise assures that the Authority's customers will continue to receive the low cost power for which they contracted. Finally, the agreements, as indicated above, provide assurance that funds will be available to decommission the facilities. A description of the principal agreements implementing this action is contained in the President's Memorandum. The President's Memorandum also contains a comparative analysis of the offers received by the Authority. There are no significantly measurable differences in the environmental or safety impacts associated with these alternatives. In essence, the alternatives differ only in their financial impacts on the Authority and as noted in item A.7. of the President's Memorandum, analysis" showed that sale of the plants to either Buyer was substantially superior to continued ownership." Conclusion For the reasons set forth above and in the January 6, 2000 Environmental Assessment Form, the proposed action will not have any significant environmental impacts and does not require preparation of an Environmental Impact Statement. 16 ETR000045

EXHIBIT 2 RV101K< STAT- OEPARTP.ENT Or STATE ... ,... .. tOASTALSHAR*tMENT ?OCRAH Coastat Assesosnt For, A. 114STRtUC~ToIIS (Pleasoeprnt or typoaltaswers) ~ 1, State agencies shell cc-lopte LiAt tho s for proposed actions wýnich Afzubjcct to Part 600 of Title 194of tho NYCt.R. This assessment Is intended to supplement otj'.oJ- infonmatlion used by a state agency in raking a determination of signifIcance pursuant to the State Enviror atetiOu-aLity Rav'tem Act (see 6 UYCM, Part 6171. If it Is determined that a proposed actionwilt iit hove a significant affect cn tao envi~rn:ermt, this seassment Is intended to caos-: a stateagensy in ccsVtying wl M E.e cartification requirements of 19 SCRR section 600.4.

2. If any question In Section Con this form Is answered "yes", then the proposed action may effect the achievement of tn, coastal policies contained In Article 42 of the Exmecutive toq. Thus, the acstin should he naLyzed in rore detait and. if necessary, codified prior to either (Ca)mkirg a certification of consastency pursuent to 19 tYCRRPart 600 or, ib) making the findings required under SEOR. 6 fYCtRR, Section 617.9, If the action Is one for witich an envlrorzentali ijeact statecent Is being prepared. If an action cennot be certified as consistent with the coastal policies, it shaLt not be uaderteken,

3. sefor& answering the questions in Section C, the preparar or this form should reviee the coastat politcies contained in 19 iKdia Section 600.5. A proposed action should be evaluated as to Its significant beneficial and adverse effects upon the coastal area.

8. OESQTPTION OF PROPOSM ACTION 1, Type of state agency action (chock apprepriate response):

(a) DiretLy undertaken (e.g. capitaL construction, planning activity, agency regulation, Land transaction)_ (b) Financial assistance (e.g. grant, Loan. subsidy) (c) permit, license, certification X

2. Describe ratUre and extent of action: Gee Xesraris Section

3. Location of action Weacch.cter ,,uchanan Indian Point county City, Town or Vitlage Street or site Description

4. If an aoptication for the proposed action has been filed with the state agency, the foLlowing Infaroation shalt be provided:

te) Ilasa of appticant: Con Edison, Ilew York ?owex Autthority ibi Hailing address: Cork ,Bdison of NY, 4 Irvin* Place. NY, I Y 10003, PAStY . 1b33 "1roadway (c) Telephone Wztber; Area Codea2-L) i1f1. AI- 01ii (72l ) lian-.if I nLNYY, 10019 (d) State agency application number . -,lt:2-Ofll 1 I -" S. WtLL the action be directLy undertaken, require funding, or approval by a frdert egancy . To& to N_ t If yes, ýhiih federal agency?_ C. COASTAL ASSESSIERT (Check either "Yes' or "No for each of the following *tuestions) YES NO

1. Vitt the proposed action bs located In, or contiguous to, or have e sinnificent affect upon any of the resource areas identified on the coastal area eap:

(a) significant fish or wildlife habitats? ....................................................... X (hi Scenic resources of statewide signifticane? .................................................. X (c) imeortant agriculturat tLans? ................................................................-

2. WIlL the proposed action have a siziflcent affeet upon:

(al Commeriat or recreationat use of fish and i4tdtLife resoures? ............................... tb) Scenic quality of the coastal avireonentt ..................................... ............. X (c) Developoent of future, or existing water dependent uses? ..................................... X

-                  d   Opeation of the State's eajor ports? ....................                                 :; ..................................

(al Land and water uses within the State's soazt harbors? ........................................ Mf Existing or potential public recreation cpportunitles? ....................................... (g) Stnautures, sites or districbt of historic, archeological or cultural significance to the State or nation? ...................................................................... X

YES i4?

3. Will the prcposed action involve or result in any of the following:

(a) Physical alteration of two (2i acres or mere of tend along the shoreline% land under water or coastoL waters? ..................................................................... Y ib) Physical alteration of five (5) acres or more of land Located elsewhere In the coastal area' ........................... .................................. II......-.1......___ X__ (cl txpasnion of existing piblicservices or infrastructure in undeveloped or Lowdensity areasof the coastalarea?................................................................. (d) Energyfacility not subjectto Article VII or Vll of the Pubtl Servict Law? ..............- (a) Mining, excoavation, fitting or dredging in coastatwaters?...................................- if) Reduction of existing or potential public access to or alongthe shro? ...................... - (g) Sale or change in use of state-owned LandslocatedJ on the shoreline or ender water? .......... -- .I (hi) Development within a designatedfloow or erosaion hazard area? ................................- fi) Development on a beach, dune, barrier island or other natural feature that provides protection against flooding or erosion? ......................................................-

4. WiLL the proposed action.be located in or have a signiflient effect upon en area included in an approved tocat Waterfrot Ravtoetizetion Program? ............... .........................

D. SUBMISISIONl I1IOIRD4!NT If

• ny q,* tion in Section is answe*ed e1s"o.. AN e etheror the foltowing teconditions is ot:.' .

Section 6 ije) or BAN lib s checked; or Section 0.l(cd Is checked AND 8.5 Is answered "Yes", 1HE_.1 one cop of the ccupleted Coastal Asseasesmt feri shalt be sutitted to: lIe, York State Department of state Coastal lanagement Program 162 washington Avenue Albany, New York 12231 If assistance or further inforvation is noede, to cOnpLeta this form, please cell the Dpertment of State at 4518) 474-3tA2. E. ROBiRKS28 20D1TIONAL INFOtMATIDI The renewal of the State Poljutant Discharge Elimination System (31'Ems) permit for the Con Edison and -New "YorkPo-wer Authority Indian Point Electric Ganorating Facility (Units 2 and 3). The proposed levels of protection from entrainment and JpinSgonren will be at least equal to those ensured, on average across years, by the 1981 and 1987 SPDES permits for five representative taxa of fish. The levels of protection w.ill be achieved by managi*ag the rates of cooling titter flow, end Continuously rotatinp the nodified RiStroph sureens to reduce impingement and increase survival of impinged fist. PraPretaS 1ine: Tirt, r,ýr'n Lng na'lavat 2 Telephone Numbsr: 9I 457-2224 * (Please print) -Titter- Agency: Iri.g Dapt. of .Environmental Cate: 2111/03 CAFRevised 9/8&

EXHIBIT 3 SPATE CONSISTENCY PROJECT REVIEW SHEET To: PROJECT #q-O 2O FROM: RECEIVED: REnce 3-R-0CC DATE: flar--k C, 2006. SECTION I - GENERAL PROJECT DATA Applicant/Project Title: C , ea; C 4 A) V1 P/4 rh 4 A 0~ t State Agency:* )tC Location: Region - f~~cits' County T_ e~hse City/! Village - ( .4, t o. f-Water fo-dy - kd-so. #2ANer Project Type &

Description:

U~seCo4-rt veý-utr Lfct.4r,e Col1,1 Submiitted Project Information: CAF/EAF DEIS FaS Adtion Needed: Review Comments Due By: Other SECTION II - STATUS OF REVIEW (TO BE COlVEPLETED BY PROJECT REVIE WER) Preliminary Evaluation: Specific Concerns: Necessary Action/Justification: Comments/Other Action: SECTION I - DECISION Comments Sent to Agency No Comments Necessary (Revised September 3, 1998)

EXHIBIT 4 STATE OF NEW YORK PUBLIC SERVICE COMMISSION At a session of the Public Service Commission held in the City of Albany on August 16, 2001 COMMISSIONER PRESENT: Leonard A. Weiss, Commissioner CASE 01-E-0040 - Joint Petition of Consolidated Edison Company of New York, Inc. and Entergy Nuclear Indian Point 2, LLC for Authority to Transfer Certain Generating and Related Assets and for Related Relief. ORDER ADOPTING AND APPROVING ISSUANCE OF FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT (Issued and Effective August 17, 2001) BACKGROUND On May 3, 1996, the Commission issued a Final Generic Environmental Impact Statement (FGEIS) in the Competitive Opportunities Proceeding' that addressed the potential environmental, social and economic impacts of a policy opening New York's electric markets to competition. It was acknowledged in the FGEIS that localized impacts could arise as a result of measures taken by the utilities to implement this policy. Under the State Environmental Quality Review Act (SEQRA), the consideration of the proposed sale of the Indian Point 1 and 2 Nuclear Generating Stations (IPl and IP2) and related assets by Consolidated Edison Company of New York, Inc. (Con Edison) to Entergy Nuclear Indian Point 2, LLC (ENIP2) constitutes a subsequent action to the policy determinations in Cases 94-E-0952, et al., Competitive OpportunitiesRegarding Electric Service. ETR000047

CASE 01-E-0040 Case 94-E-0952. 2 The companies jointly filed a petition for approval of the transaction pursuant to Public Service Law § 70 on January 12, 2001. On January 22, 2001, the companies filed a draft supplemental environmental impact statement (SEIS) analyzing the specific environmental, social and economic impacts related to the proposed transfer. Informal comments on the draft were solicited; while comments were received in response to this solicitation, no changes to the draft SEIS were deemed necessary. Therefore, on April 25, 2001, the Commission accepted the draft SEIS as complete and ordered that it be issued for public comment. 3 Notice of the draft SEIS was published in the Environmental Notice Bulletin on May 2, 2001. By Notice issued June 4, 2001, the public comment period was extended to June 21, 2001. Comments were received from Environmental Advocates (EA), the Town of Cortlandt and the Hendrick Hudson School District (Town/School), and ENIP2. The comments are summarized in Section IV of the Final SEIS, attached hereto. Based on the comments received, and upon further consideration and analysis by Department of Public Service Staff (Staff), a number of changes to the draft SEIS were made. A discussion of the changes made is set forth below and in Section IV of the Final SEIS. 2 Case 94-E-0952, supra, Opinion No. 96-12 (issued May 20, 1996). 3 Case 01-E-0040, Joint Petition of Consolidated Edison Company of New York, Inc. and Entergy Nuclear Indian Point 2, LLC for Authority to Transfer Certain Generating and Related Assets and for Related Relief, Notice of Completion of Draft Supplemental Environmental Impact Statement (issued April 25, 2001) . ETR000048

CASE 01-E-0040 P-- DISCUSSION Prior to the formal commencement of this proceeding, Staff identified a number of potential environmental impacts associated with the proposed transaction and directed Con Edison and ENIP2 to prepare a draft SEIS to address such impacts. As explained above, consideration of this transaction is a subsequent action to the policy considerations in Case 94-E-0952. Therefore, the impacts were analyzed to determine if they were within the conditions and thresholds of the FGEIS. If the transaction is approved, ENIP2's ownership and operation of IP2 is likely to result in its improved performance. Additionally, synergies are expected by virtue of its affiliate's ownership of the Indian Point 3 Nuclear Generating Station. However, and as discussed in the attached Final SEIS, it is not reasonably anticipated that approval of the transaction would result in potentially significant adverse impacts, with one exception, discussed below. Further, almost all of the impacts identified were either not significant, within the conditions and thresholds of the FGEIS or found to be same whether Con Edison or ENIP2 owns the assets. The exception relates to the impact of the proposed sale on local property taxes. While that impact was generally discussed in the FGEIS, the Final SEIS determines that additional mitigation is warranted to ameliorate the potential diminution of the host community's tax base if the sale is approved. In their comments, the Town/School noted a number of deficiencies in the draft SEIS, some of which were determined to require further analysis (e.g., the environmental impacts of improved capacity factors at IP2). The Town/School and EA raised a number of concerns generally related to nuclear power, decommissioning, spent fuel storage, and related issues that are

• T) outside the scope of this proceeding and therefore were not ETR000049

CASE 01-E-0040 fully analyzed. They also raised issues that are properly addressed in other proceedings (e.g., the concerns related to the State Pollution Discharge Prevention System permits should be raised in the DEC permitting proceedings and the concerns related to the potential new generation at the site will be reviewed in a PSL Article X proceeding). Having incorporated the comments received and the changes discussed above and in Sections IV and VI of the Final SEIS, this portion of the environmental review process is complete. With the Final SEIS, the Commission will have fully addressed the potential adverse impacts associated with Con Edison's divestiture of IPl and IP2 and taken the requisite hard look required by SEQRA. The mitigation measure contained in the Final SEIS, in combination with the mitigation measures previously proposed in the FGEIS, mitigate, to the maximum extent practicable, the localized impacts that may arise as a result of approving the transaction. () CONCLUS ION The attached Final SEIS is accepted as complete and adopted by the Commission. It is ordered:

1. The attached Final Supplemental Environmental Impact Statement is accepted as complete and is adopted.

2. Notice of the completion of the Final Supplemental Environmental Impact Statement shall be published in the Environmental Notice Bulletin in accordance with 6 NYCRR Part 617.

3.. This proceeding is continued. (SIGNED) _ _, Commissioner ETROO0050

FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT in CASE 01-E-0040 - Joint Petition of Consolidated Edison Company of New York, Inc. and Entergy Nuclear Indian Point 2, LLC for Authority to Transfer Certain Generating and Related Assets and for Related Relief. Prepared by Lead Agency: New York State Department of Public Service Three Empire State Plaza Albany, NY 12223-1350 Action: Consideration of whether to approve the proposed divestiture of the Indian Point 1 and Indian Point 2 Nuclear Generating Stations and related assets by Consolidated Edison Company of New York, C Inc. to Entergy Nuclear Indian Point 2, LLC Location of the Action: City of Albany, Albany County, New York and Village of Buchanan, Town of Cortlandt, Westchester County, New York Date of Acceptance by Lead Agency: August 16, 2001 Agency Contact Person: John Smolinsky (518) 474-5368 Environmental Analysis by DPS Staff: Martin Cummings Richard Powell John Smolinsky Kevin Lang ETR000051

CASE 01-E-0040 TABLE OF CONTENTS Page

SUMMARY

...........................................                                        1 I. BACKGROUND ........................                            :.. ............       2 II. DESCRIPTION OF PROPOSED ACTION AND ALTERNATIVES ......................................                                   4 III. ENVIRONMENTAL SETTING .............................                                   5 IV. REGULATORY FRAMEWORK ..............................                                   7 V.   

SUMMARY

OF AND RESPONSES TO COMMENTS .............. 15 VI. EVALUATION OF IMPACTS ............................. 31 VII. MITIGATION OF IMPACTS ............................. 48 VII. CONCLUSIONS AND RECOMMENDATIONS .................... 50 Q Competitive Opportunities and SEQRA Milestones ..... ATTACHMENT 1 Historical Setting of Indian Point 2 State Pollution Discharge Elimination System Permit ...... ATTACHMENT 2 Department of Environmental Conservation Approval of Corrective Action Work Plan, dated August 2, 2001 ............................... ATTACHMENT 3 Nuclear Regulatory Commission Annual Assessment Letter for Indian Point 2, dated May 31, 2001 ...... ATTACHMENT 4

                                                          -i-ETR00O52

CASE 01-E-0440

SUMMARY

The Public Service Commission's (Commission) consideration of Consolidated Edison Company of New York, Inc.'s (Con Edison) proposed sale of its Indian Point 1 and Indian Point 2 Nuclear Generating Stations (IPI and IP2) to Entergy Nuclear Indian Point 2, LLC (ENIP2) under Public Service Law (PSL) § 70 constitutes a subsequent action to the policy determinations issued in Opinion No. 96-12,1 and to the subsequent rate/restructuring decisions made by the Commission in Opinion No. 97-16 in Cases 96-E-0897, et al. .2 Therefore, under the 3 State Environmental Quality Review Act (SEQRA) and its 4 implementing regulations, the Commission must determine whether the impacts associated with the proposed transaction are within the conditions and thresholds of the Final Generic Environmental Impact Statement (FGEIS) issued in connection with Opinion No. 96-12. This Final Supplemental Environmental Impact Statement (SEIS) analyzes the detailed site-specific information provided by Con Edison and ENIP2 in the draft SEIS submitted as part of their PSL § 70 filing and other factual information assembled herein, and responds to public comments on the draft SEIS noticed by the Commission. It identifies and addresses the environmental, social and economic impacts found to arise as a I Cases 94-E-0952, et al., Competitive Opportunities Regarding Electric Service, Opinion No. 96-12 (issued May 20, 1996). 2 Cases 96-E-0897, et al., Consolidated Edison Company of New York, Inc.'s Plans for Electric Rate/Restructuring Pursuant to Opinion No. 96-12, Order Adopting Terms of Settlement Subject to Conditions and Understanding (issued September 23, 1997); Opinion and Order Adopting Terms of Settlement Subject to Conditions and Understandings, Opinion No. 97-16 (issued November 3, 1997). 3 Environmental Conservation Law, Article 8. O) 4 6 NYCRR Part 617 and 16 NYCRR Part 7. ETR000053

CASE 01-E-0040 result of the proposed sale, and determines whether such impacts are within the conditions and thresholds of the FGEIS. One impact that was addressed in the FGEIS which may warrant additional mitigation concerns the effect of the proposed sale on local property tax revenues. Additional mitigation for this impact should include encouragement for ENIP2 and the host community to negotiate gradual changes in the facilities' assessments. With the adoption of the above mitigation measure, the requirements of SEQRA will be met; consistent with environmental, social and economic considerations from among the reasonable alternatives available, the divestiture of IPI and IP2 avoids or minimizes adverse impacts to the maximum extent practicable. The action is also consistent with applicable coastal zone policies set forth in 19 NYCRR §600.5. I. BACKGROUND

         .On May 3,  1996, the Commission issued an FGEIS in      Case 94-E-0952 that addressed the'environmental,       social and economic impacts of a policy supporting increased competition in        electric markets. Alternative approaches to achieving electric competition,  a no-action alternative,     and several scenarios incorporating uncertainty were studied.

The Commission took this action to satisfy the requirements of SEQRA and its implementing regulations. SEQRA requires the existing planning, review and decision-making processes of state, regional and local government agencies to consider environmental factors at the earliest possible time. To accomplish this goal, SEQRA requires that all agencies determine whether the actions they are requested to approve may have a significant impact on the environment. If any significant adverse impacts are identified, social and economic impacts associated with the proposed actions must also be examined; ETR00054

CASE 01-E-0040 mitigation should be proposed to avoid or minimize any impacts found, to the extent practicable. The Commission determined that the environmental effects of a more competitive market for electricity, while not fully predictable, will be modest or not distinguishable from those of other alternative actions, including the no-action alternative.$ The FGEIS process undertaken by the Commission did not identify any reasonably likely significant adverse impacts that could not be satisfactorily dealt with through mitigative measures. The Commission, however, recognized that individual utility proposals might bring to light new concerns, 6 so it required each utility to file with its restructuring plan a draft EAF with a recommendation on whether further environmental review would be necessary. These submissions were expected to assist the Commission in determining the need for additional mitigation measures with respect to each utility's restructuring plan. Con Edison filed its EAF and recommendation in support of its restructuring plan on April 9, 1997, then amended it on September 9, 1997. The Commission adopted a final EAF, which found that the proposed restructuring would be carried out in conformance with the conditions and thresholds of the FGEIS and findings adopted in Case 94-E-0952, in Opinion No. 97-16. In conjunction with its request for the Commission's approval of the instant transaction, on January 22, 2001, Con Edison and ENIP2 filed a draft SEIS analyzing the specific environmental, social and economic impacts related to the proposed transfer. Informal comments on the draft were solicited; while comments were received in response to this solicitation, no 5 Opinion No. 96-12, supra, p. 77. 6 Opinion No. 96-12, supra, p. 78, n. 1 (further clarified in Opinion No. 96-17, p. 7, n. 1).

                                  -

ETR000055

CASE 01-E-0040 changes to the draft SEIS were deemed necessary.? Therefore, on (C) April 25, 2001, the Commission accepted the draft SEIS as complete and ordered that it be issued for public comment.8 Notice of the draft SEIS was published in the Environmental Notice Bulletin on May 2, 2001. Comments were received by the Town of Cortlandt and Hendrick Hudson School District (filed jointly), Environmental Advocates and ENIP2; they are summarized and discussed in Section V. For ready reference, Attachment 1 contains a complete chronology of the SEQRA actions associated with this case and considered in this determination. II. DESCRIPTION OF PROPOSED ACTION AND ALTERNATIVES Con Edison and ENIP2 filed their PSL § 70 petition for approval of the sale of IPl and IP2 from Con Edison to ENIP2 on January 12, 2001. The petition sets forth the terms and conditions upon which the plants will be sold, associated accounting and ratemaking treatment for the sale, and justificatioh that the sale is in the public interest (the Proposed Action). The only alternative to the proposed transaction is to maintain the generating facilities under current ownership in a fully regulated environment.9 This is the No Action alternative. The comments received are nevertheless summarized in Section V. B Case 01-E-0040, Joint Petition of Consolidated Edison Company of New York, Inc. and Entergy Nuclear Indian Point 2, LLC for Authority to Transfer Certain Generating and Related Assets and for Related Relief, Notice of Completion of Draft Supplemental Environmental Impact Statement (issued April 25, 2001). 9 While the plants could also be transferred to an unregulated affiliate of Con Edison or spun-off to an unaffiliated entity, the impacts of these alternatives would be the same as the impacts of. the proposed sale to ENIP2. Therefore, they do not need to be analyzed in this final SEIS. ETR000056

CASE 01-E-0040 0The purpose of this Final SEiS is to examine the site-specific impacts of the proposed transfer. In this document, it has been determined that one impact that was addressed in the FGEIS that may warrant additional mitigation concerns the effect of the transfer on local property tax revenues. Given the significant changes occurring in the electric generation industry, it is equally likely that the same impact could arise under the no action alternative. Regardless, it has been determined that this impact would arise as a result of the transfer, requiring the preparation of this final SEIS. ENIP2 was selected as the purchaser of IPI and IP2 in an auction process conducted by Con Edison, in consultation with Morgan Stanley & Co., Inc. (Morgan Stanley). The auction process started with the solicitation of bids from a broad universe of potentially interested entities. Entities that signed confidentiality agreements were provided an information memorandum that described the assets and the proposed terms of the transaction agreements and were invited to submit non-binding initial bids (Phase I). Morgan Stanley made recommendations as to which bidders should be invited to Phase II of the process, which involved further due diligence inquiries by the bidders. The Phase II bidders submitted binding bids containing the prices and terms upon which they would purchase IPl, IP2 and related assets. These bids were evaluated by Con Edison and Morgan Stanley based on the bidders' technical and financial qualifications and on the bidders' ability to fulfill the obligations contemplated under the transaction documents. Con Edison consulted with Staff prior to the selection of ENIP2 as the winning bidder. III. ENVIRONMENTAL SETTING IPI and IP2 are located proximate to the east bank of the Hudson River in the Village of Buchanan, Town of Cortlandt, ETROO0057

CASE 01-E-0040 Westchester County, New York, on a parcel comprising approximately 176 acres (the Site). IPl was a nuclear-powered generating facility that began commercial operations in 1962; operations were suspended in 1974 and the facility was retired in 1980. A portion of the facility remains in service to support IP2 operations. IP2 began commercial service in 1974. The Indian Point 3 Nuclear Generating Station (IP3), owned by Entergy Nuclear Indian Point 3, LLC (ENIP3), is located on an approximately 80-acre parcel immediately east of and adjacent to IP2. IP2 and IP3 are of a similar design, configuration and age, and the units also share certain facilities and services. IP2 is a nuclear-powered generating facility, the operation of which is regulated by the Nuclear Regulatory Commission (NRC) through licensing which includes the on-Site storage and use of special nuclear source and byproduct materials. IP2 is licensed by NRC to operate until 2013. Public access to the Site is restricted in accordance with IP2's NRC-issued operating license, although an energy education center located outside the security-protected area of the Site is open to the public by appointment. In addition to IPl, IP2 and their various support facilities, the Site includes three internal-combustion, natural gas-fueled turbine units. Gas Turbine 1 is located adjacent to IP2; Gas Turbines 2 and 3 are located adjacent to Con Edison's Buchanan Substation property, which is situated to the east of and across a public roadway from the Site. The Toddville Training Center, which also is being transferred to ENIP2, is located nearby, but off-Site, and houses classrooms and laboratories for IP2's technical training programs, computer-based general employee training facilities, and office space for the training staff. The principal activities on the Site are the generation of electrical energy for electric consumers. IP2 has a net electrical capacity of 941 megawatts (MW) in the summer and 976 MW in the winter, based on testing conducted in 1999. Including ETROO0058

CASE 01-E-0040 the three Gas Turbines, the entire facility has a net electrical capacity of 990 MW in the summer and 1,040 MW in the winter. More than 700 persons are currently employed by Con Edison at the Site. The area surrounding the Site is generally residential, with some sizeable proximate military compounds and park lands. Approximately 50 people reside within a 1,100 meter radius of the Site, most in the Village of Buchanan. The population concentration in the vicinity of the Site is in the City of Peekskill, the center of which is about 2.5 miles northeast of the Site. The estimated year-2000 population within a 15 miles radius is approximately 1.0 million, and, according to 1990 estimates, approximately 15.5 million people live within a 50-mile radius, including in New York City, an area approximately 25 miles south of the Site. The New York State Department of Commerce projects no substantial increases in population from 1986 to the year 2013 in any of the four counties in the vicinity of the Site. Increased commercial development has occurred within a mile of the Site since 1980. The only substantial agricultural areas within 15 miles-are south or northwest of the Site, across the Hudson River. IV. REGULATORY FRAMEWORK This section augments the FGEIS by highlighting specific environmental regulatory aspects of IP2's operations. A. Air Resources The federal Clean Air Act (CAA) requires each state, including New York State, to regulate the emission of certain air pollutants. The Federal government sets national ambient air quality standards (NAAQS) for certain regulated or criteria pollutants, including sulfur dioxide (S0 2 ), nitrogen oxides (NO.), carbon dioxide (CO2) , ozone (03), and particulate matter (PM), which each state is required to meet through the control of emission of pollutants. A brief description of each of these air pollutants is provided below: ETR000059

CASE 01-E-0040

  "  S02 - emissions that are directly related to acid rain "acidic deposition" and also react in the atmosphere to form sulfates,  a form of secondary respirable particulates.

• NO,, - emissions that, together with reactive hydrocarbons, are precursors of ground-level ozone; ground-level ozone is formed through complex chemical reactions of NO,,, acidic compounds and volatile organic compounds (VOCs) in the presence of sunlight; it is an air pollutant directly related to respiratory diseases.

  " CO2 - a greenhouse gas that,       because of its   slow decay and corresponding long-term residence in       the atmosphere,       may be thought to be associated with global warming.

• PM - solid or liquid particles suspended in ambient air.

The United States Environmental Protection Agency (EPA) has delegated to the New York State Department of Environmental Conservation (DEC) authority to administer certain federal CAA permitting requirements within New York State, including the Title V permitting system governing "major sources" of certain air pollutants. There are several permitted air emission sources at IP2, including two house boilers ("mid-size boilers") that share one stack and the three Gas Turbines. IP2 operates these emissions sources subject to and with the benefit of a Title V. permit, #3-5522-00011/00019, issued by DEC, and individual permits issued by the Westchester County Department of Health. (Environmental permits are identified in Table I, in Section IV.H. below.) In general, nuclear generating facilities, including IP2, emit negligible DEC-regulated air pollutants (SO 2 , NO, and C02 ) compared to fossil-fueled generating facilities, for comparable power output. However, at IP2, the Gas Turbines, the emergency generators (which provide auxiliary and mandatory emergency power supply to the facility) and the house boilers all burn fossil fuels, although their air emissions are relatively ETROO0060

CASE 01-E-0040 minor. Thus, generation from IP2, to the extent it displaces generation from fossil-fueled power plants that do emit air pollutants such as SO 2 , NO,, C0 2 , PM and hazardous air pollutants, may assist New York State in meeting federal and state air pollution goals. In fact, the FGEIS characterizes air impacts (NO, and SO 2 as the most important of the potential environmental impacts associated with the generation of electricity, see FGEIS,

p. s-5) and concludes that the early retirement of New York's nuclear units, including IP2, would have a significant negative environmental impact on air resources, see FGEIS, p. 5-3.

B. Water Resources Water quality considerations include the discharge of pollutants to surface waters. These discharges include cooling water containing heat (transferred to cooling water in condensers), residual water-treatment chemicals, and trace metals. In addition, IP2 withdraws quantities of water from the Hudson River for cooling purposes. Cooling water withdrawal may result in the mortality of smaller aquatic biota, such as fish eggs and larvae, in a process referred to as entrainment. Cooling water withdrawals also may impact larger aquatic biota, such as juvenile fish, in a process referred to as impingement. The EPA has delegated to DEC authority to administer certain federal Clean Water Act requirements, including the National Pollutant Discharge Elimination System (NPDES) within New York State, administered by DEC as the State Pollutant Discharge Elimination System (SPDES) program, under ECL Article 17, Title 8. IP2 operates subject to and with the benefit of four SPDES permits issued by DEC as follows: Permit No. NY-0234826 for wastewater discharge from Gas Turbines 2 and 3, Permit No. NY-0250414 for the Indian Point Simulator and Transformer Vault, Permit No. NY-0251135 for the Indian Point Tank Farm, and Permit No. NY-0004472 for cooling water discharges from IPl, 122 and IP3 through a common discharge canal. This Q) latter SPDES permit is jointly held with ENIP3. ETROO0061

CASE 01-E-0040 Discharges under the IP2/IP3 SPDES Permit No. NY-0004472, in conjunction with SPDES permits issued to the Bowline and Roseton Generating Stations (collectively, the Hudson River power plants), are currently being reviewed by the DEC, consistent with pending requests for renewal timely made by each of the plant owners on April 3, 1992 under a consolidated SEQRA proceeding. As noted in the FGEIS, p. 5-59, the owners originally submitted a Draft Environmental Impact Statement (DEIS) to the DEC in July 1993. After a series of technical workshops involving regulators and participants to the SEQRA process, on December 14, 1999, the owners submitted a revised DEIS, the review of which is ongoing."1 The history of the SPDES permitting for IP2 is further detailed in Attachment 2. Consistent with their respective SPDES permits and the pending SEQRA process, the Hudson River power plant owners have conducted an extensive ongoing environmental monitoring program, a goal of which is to allow the DEC to better evaluate the potential'environmental effects of these operating Hudson River power plants, including their potential environmental effect on aquatic life in the Hudson River. Utilizing results of this extended monitoring program, the revised DEIS concludes that the existing once-through cooling systems of the four power plants have had and are expected to have minimal adverse effect on certain representative fish populations in the Hudson River." Pending issuance of a decision by DEC on that renewal application, IP2 operates subject to its existing SPDES permit, which continues in force and effect as a matter of New York State law. " 0 The DEIS was declared complete on March 8, 2000. These conclusions are presently being discussed in the ongoing DEC SPDES permitting proceeding. ETR000062

CASE 01-E-0040 The FGEIS states that thermal pollution attributable to discharges associated with power plant operations, including nuclear units, are not a significant potential environmental impact associated with the generation of electricity, see FGEIS,

p. 5-59.

C. Endangered Species Past operations of the Hudson River power plants have occasionally resulted in the impingement of short-nose sturgeon on the facilities' traveling screens. Short-nose sturgeon is currently listed as "endangered" under the Endangered Species Act. In the previous SPDES permit proceedings, the Hudson River power plant owners supplied the National Marine Fisheries Services (NMFS) all data on short-nose sturgeon that were collected in biological sampling programs. In testimony to the EPA in 1979 as part of the SPDES proceedings, NMFS concluded in its Biological Opinion,- pursuant to Section 7 of the Endangered Species Act, that once through cooling systems of the power plants did not pose a threat to the short-nose sturgeon population in the Hudson River. In the DEIS prepared in the DEC SPDES permitting proceeding, it was reported that the Hudson River Estuary population appears to have increased over the past few decades and the Estuary currently contains the largest discrete population of short-nose sturgeon reported anywhere. In 1998, NMFS recommended that the Hudson River's population of short-nose sturgeon be changed from endangered to threatened. D. Waste Generation, Storage and Disposal IP2 generates solid and hazardous waste, as well as "mixed" waste. Solid and hazardous wastes are primarily generated from the normal day-to-day operations of the facility, maintenance operations, and chemical laboratory processes. The solid wastes generated at the facility largely consist of protective clothing and trash, while the hazardous wastes at the facility largely consist of spent solvents and oils. Solid and ETR000063

CASE 01-E-0040 hazardous wastes are temporarily stored on-Site, prior to transport to and disposal at permitted off-Site facilities, in accordance with EPA and DEC issued authorizations, including an EPA hazardous waste identification number (NYD99130-4411) . See Section IV.H.. IP2 utilizes specialized vendors for transport and disposal of solid and hazardous wastes.

           "Mixed" waste is   hazardous waste that exhibits low-level radioactivity as defined in      10 CFR Part 61. Mixed wastes are largely generated from maintenance operations inside the radiologically-controlled plant area.       These wastes are generated in relatively small quantities and primarily include lead-contaminated paint chips and sludge containing trace amounts of PCBs. Mixed wastes are drummed and stored at an EPA- and DEC-licensed on-Site permitted      (pursuant to 6 NYCRR Part 373)  storage facility pending final disposal.       Currently, approximately 45 drums and about 1,200 cubic feet of mixed wastes are stored at the Site.

E. Petroleum Storage Tanks IP2 has two petroleum storage tanks, Tanks 11 and 12, each with a total capacity of 2,350,000 gallons. Tank 12 has been retired in-place, in compliance with applicable laws. The capacity of Tank 11 is limited to 1,000,000 gallons, consistent with the volume of secondary containment available to contain potential spills. A Major Oil Storage Facility License (No.3-2140) has been issued by DEC for these tanks. In support of the license and state/federal regulations, the Site maintains Spill Prevention and Countermeasure Control and USCG Facility Response Plans. F. Chemical Bulk Storage IP2 has two tanks used to store sodium hypochlorite regulated under the New York State Chemical Bulk Storage (CBS) Law and 6 NYCRR Part 596. IP2 operates subject to and with the benefit of a CBS Certification issued by DEC (Registration CD ETR000064

CASE 01-E-0040 Certificate No. 3-000107). In accordance with the CBS regulations, IP2 also maintains a Spill Prevention Report for these tanks. G. Environmental Management System Con Edison has established comprehensive environmental management systems, the respective goals of which are to assure attention to and compliance with environmental laws, and to further the efforts to ensure that on-Site operations are conducted in a manner that protects human health and the environment. H. Environmental Permits A summary of environmental permits, authorizations, certificates or licenses held by Con Edison for IP2, and to be transferred to or obtained by ENIP2, follows. TABLE OF ENVIRONMENTAL PERMITS Agency e 77 Permit For Permit No. Term Expiration Date A. Air Emission Permits DEC Title V (covers Gas 3-5522- 5 9/29/2005 Turbines 1, 2, & 3, 00011/00019 years and House Boilers) WCDOH* Gas Turbine 1 0152-00021 3 12/31/2000 years WCDOH Gas Turbine 2 0152-00022 3 12/31/2000 years WCDOH Gas Turbine 3 0152-00023 3 12/31/2000 years WCDOH House Boilers 52-4493 No exp. Date

 *Westchester County Department of Health B. Water Discharge (SPDES)

ETR000065

CASE 01-E-0040 TABLE OF ENVIRONMENTAL PERMITS Agency Permit For Permit No. Term Expiration Date DEC IPi, IP2 & IP3 NY-0004472 5 10/01/1992 (shared with ENIP3) years (Renewal app. Submitted 4/92; pending) DEC IP Tank Farm NY-0251135 5 02/01/2005 years DEC IP Simulator Transformer Vault NY- 0250414 5 03/01/2003 years DEC Gas Turbines 1 & 2 NY-0234826 5 03/01/2003 years Agency Permit For Permit No. Term Expiration Date C. Hazardous and Mixed Wastes DEC 6 NYCCR Part 373 3-5522- 10 02/28/2007 Permit for Mixed 00011/00018 years Waste Storage EPA Hazardous and Solid NYD991304411 5 10/14/2002 Waste Amendments years Permit - Mixed Waste D. Oil Storage DEC Major Petroleum Facility License 3-2140 2 03/31/2002 years, E. Chemical Storage DEC Hazardous Substance 3-000107 2 06/15/2001 Bulk Storage years Registration F. Hazardous Materials USDOT Hazardous Materials 062300001 0331K 1 06/30/03 Certificate of year Registration ETR000066

CASE 01-E-0040 TABLE OF ENVIRONMENTAL PERMITS Agency Permit For Permit No. Term Expiration Date South Radioactive Waste 0019-31-00 1 12/31/01 Carolina Transport Permit year DHEC EPA EPA Identification NYD991304411 N/A No exp. Number Date New York Asbestos Handling 99-0304 1 06/03/01 DOL License year Tennessee Radioactive Waste T-NY010-L00 1 12/31/01 DEC License for Delivery year V.

SUMMARY

OF AND RESPONSES TO COMMENTS

1. Summary of Comments Environmental Advocates Environmental Advocates (EA) expresses concern that ENIP2 is not financially qualified to safely and responsibly operate and maintain IP2. EA is concerned that ENIP2 may have insufficient revenues, assets, earnings and cash reserves to properly operate IP2 and cover both its investment in the facility and all of its expenses.

EA also contends that the petition does not adequately address the potential downside risks if the decommissioning fund is not sufficient to complete decommissioning, and that the method by and time frame in which ENIP2 will decommission IPl and IP2 are not specified. EA notes that the terms of the IP2 power purchase agreement (PPA) are not as favorable to Con Edison as the terms of the PPA for IP3 are to the New York Power Authority (NYPA). EA is troubled that the generic nuclear proceeding (Case 98-E-0405) was never concluded, and argues that that proceeding should be completed before evaluating this and other pending nuclear plant sales. EA continues that Con Edison's recent problems at IP2 indicate that nuclear safety is not ETR000067

CASE 01-E-0040 receiving enough attention under a regulated marketplace, and moving to a competitive marketplace could exacerbate these -concerns. EA suggests that the SEIS should contain an assessment of the condition of IP2, including an update to the facility's Final Safety Analysis Report (FSAR), a document required by the NRC. EA questions the status of the IP2 FSAR, arguing that conditions at the facility cast doubt on its ability to operate safely. EA suggests that all problems at IP2 be corrected to prevent ENIP2 from operating the facility in an unsafe manner. Last, EA asserts that the SEIS should assess the environmental externalities of nuclear power, generally. The assessment should include the impact of once-through cooling on aquatic life. EA claims nuclear power is not as "clean" as many government and industry officials claim, that the future storage of nuclear waste remains unsettled and that investments in nuclear power preclude investments in renewable energy development. Town of Cortlandt/Hendrick Hudson School District The Town of Cortlandt and Hendrick Hudson School District (Town/School) filed two sets of extensive comments on the draft SEIS--on March 16, 2001 and June 21, 2001.2 Their comments pertain to a number of issues directly associated with the Proposed Action, as well as numerous tangential issues and issues only indirectly associated with the Proposed Action. Directly related to the Proposed Action, the Town/School express concern that the SEIS does not fully consider: (1) the impact of the proposed transfer and the PPA on ENIP2's ability to obtain sufficient revenues to safely operate IP2 and comply with its NRC 12 In their June 21, 2001 comments, the Town/School also incorporated their March 2, 2001 comments on ENIP2's petition for lightened regulation in Case 01-E-0113. Therefore, these comments, although not directed to the SEIS, will be considered to the extent they relate to issues within the scope of the environmental review. ETR000068

CASE 01-E-0040 R, license; (2) alternative structures to the proposed transaction, such as elimination of the PPA, that would provide ENIP2 with additional revenues; (3) the likely change in operations under ENIP2, as compared to the manner in which Con Edison historically operated IP2, including the impacts associated with increases in IP2's capacity factor; (4) the impacts of the transfer of IP2 from Con Edison, a highly regulated utility, to ENIP2, an entity likely to be lightly regulated with IP2 as its only source of income; (5) the overall impact on the State and system reliability resulting from the transfer; and (6) that the proposed transfer will have a negative impact on local property tax revenues. The Town/School claim that the SEIS must address the implications of the exhaustion of IP2's spent fuel pool in 2004, as well as the possibility that ENIP2 may seek to extend the license for IP2. Additionally, they suggest that the SEIS needs to address the ability of ENIP2 to safely and completely decommission IPI and IP2 and restore the Site to a greenfield condition. They do not believe ENIP2 will have sufficient funds to do so and that the Commission will not have regulatory oversight over the decommissioning trust funds. Related to this concern, they believe the possibility that ENIP2 may delay decommissioning, or employ a decommissioning method other than dismantlement and removal, must be considered, and the impacts of such possibilities analyzed. Noting that IPl, IP2 and IP3 will be under common ownership, the Town/School contend the SEIS should analyze and discuss the impacts of combined ownership on the operation and future of IP2, including the increased likelihood common ownership will have on potential for ENIP2 to seek to extend IP2's license life and delay decommissioning. The Town/School also express concern that the environmental site assessments performed by Con Edison during the course of the auction identified a number of areas of ETR000069

CASE 01-E-0040 contamination. They believe the SEIS should address how this contamination will be remediated. Similarly, the Town/School explain that the primary SPDES permit for IP2 has not yet been renewed. They contend ENIP2 will not approach the permitting process in the same manner as Con Edison, that ENIP2's plans for IP2 will result in different impacts than would have existed under the No Action alternative, and that the terms of a SPDES permit issued to ENIP2 will not be same as a new SPDES permit issued to Con Edison. Based on this explanation, the Town/School contend all SPDES-related issues and impacts should be addressed in the SEIS. Noting that ENIP2 and its affiliates have proposed siting new fossil-fueled generation on the Site, the Town/School assert that this SEIS must address the potential impacts associated with this proposal. They also assert that the choice of alternatives in the SEIS is deficient. They claim the SEIS should consider the possibility of closing IP2 in addition to the No Action and Proposed Action alternatives, On a more general level, the Town/School claim that this SEIS should not be premised or rely on the FGEIS because of numerous changes in the industry over the past six years. They contend the FGEIS did not sufficiently address the potential impacts of changes in the nuclear industry that have occurred, nor the potential impacts of the sale of nuclear generating facilities. They point to Case 98-E-0405, in which the future of New York's nuclear industry was addressed on a generic basis, and note that a broad, generic environmental impact statement was going to be prepared in that proceeding but was never completed. They recommend that the generic study be completed prior to consideration of this SEIS and the proposed transaction. They also suggest that the move to a competitive electricity generation marketplace should be reevaluated because of recent energy shortages and price increases. ETROO0070

CASE 01-E-0040 The Town/School argue that the Commission would engage in impermissible segmentation under SEQRA if it fails to combine the analysis of the transfer with the analysis of potential new generation on the Site, extension of the current IP2 license, or delays in or alternate forms of decommissioning. Entergy Nuclear Indian Point 2, LLC ENIP2 provided comments in response to certain issues raised by the Town/School. On the issue of operational improvements, ENIP2 agrees that the capacity factor of IP2 is likely to increase under its management, but that such increased capacity is not expected to produce adverse environmental impacts. Rather ENIP2 suggests that improved performance at IP2 could reduce reliance on fossil-fueled generating facilities and cause overall air quality benefits. ENIP2 explains that it will bring substantial operational experience to IP2 by virtue of the extensive nuclear holdings and experience of its parent, Entergy Corporation. On a related note, ENIP2 points out that IPl, IP2 and IP3 will not be under common ownership in that ENIP2 and ENIP3 (which owns IP3) are separate legal entities. However, ENIP2 expects to share positive synergies with ENIP3 due to the fact that they are affiliates and operations at IP2 and IP3 are likely to be merged over time. On the issue of spent nuclear fuel storage, ENIP2 explains that the issue exists without regard to the owner of IP2, and that its options are no different than those open to Con Edison under the No Action alternative. ENIP2 expects to continue Con-Edison's efforts to develop an Independent Spent Fuel Storage Installation. It asserts that this issue rests with the NRC, that the Town/School are participating in related NRC proceedings, and therefore, that they already have a forum in which to express their concerns.13

• NRC Docket No. 72-22, Private Fuel Storage Limited Liability Company, License Application for Private Fuel Storage Facility.

ETROO0071

CASE 01-E-0040 With respect to the environmental site assessments and identified contamination, ENIP2 explains that remediation is a matter of state and federal law that applies to the Site regardless of the Site's owner. DEC has already approved the remediation plan, ENIP2 continues, so there is no basis to conclude the transfer will have adverse impacts on clean-up activities (see Attachment 3). As to the SPDES renewal permitting proceeding, ENIP2 says that it will participate in the case in Con Edison's place, and that the transfer will not delay, cause any changes to, or adversely impact the proceeding. That proceeding, being conducted before the DEC, is independent of this proceeding and is subject to its own, extensive SEQRA review where all pertinent issues will be analyzed. ENIP2 also notes that the Town/School are not participating in the DEC proceeding and its SPDES-related concerns in this proceeding are therefore suspect. ENIP2 concedes that its affiliates are considering the possibility of constructing a new, fossil-fueled generating facility on the Site or adjacent to IP3 (the IP3 location is identified as the preferred site). The size of the project, if developed, is not likely to exceed 400 MW. It contends that all environmental issues and impacts associated with the project, if it proceeds, will be addressed under PSL Article X and the Town/School will have an opportunity to participate in that proceeding. Therefore, ENIP2 does not agree that this matter needs to be addressed in this SEIS. On the issue of future employment, ENIP2 concedes that one synergy saving resulting from consolidated operation of IP2 and IP3 will be reduced employment needs. However, it explains that reductions will occur through decreased use of contractors, retirements and natural attrition, not through lay-offs or terminations. Also, under the November 9, 2000 Asset Purchase and Sale Agreement (APSA) entered into by Con Edison and ENIP2, ETR000072

CASE 01-E-0040 employment levels in the short-term will remain relatively unchanged. Finally, ENIP2 notes that similar SEQRA arguments raised by the Town/School in the context of the sale of IP3 from NYPA to ENIP3 were rejected by the Supreme Court. Analogizing that case to this proceeding, ENIP2 contends that the SEIS fully addresses the reasonably foreseeable impacts of the proposed transfer and complies with the requirements of SEQRA.

2. Discussion of Comments Environmental Advocates Many of EA's comments are unrelated to or beyond the scope of the Proposed Action. The issues pertaining to nuclear power in general will be the same whether IPl and IP2 are owned by Con Edison or ENIP2. This SEIS and the underlying PSL § 70 proceeding are not the appropriate forum for a debate on nuclear power. The impact of once-through cooling is similarly outside the scope of this proceeding, as it will remain the same whether Con Edison or ENIP2 owns IP2. The proper method of cooling is best addressed in the ongoing DEC SPDES proceeding described in Part IV.

The concerns expressed by EA about the financial qualifications of ENIP2, the terms of the PPA between Con Edison and ENIP2, and the adequacy of the decommissioning fund, while important, are not appropriate topics to be addressed in this SEIS. They are, however, topics that should, and will, be substantively addressed in the PSL § 70 administrative proceeding. The other decommissioning issues raised by EA are the same regardless of whether Con Edison or ENIP2 owns IP1 and IP2. They are also issues outside the Commission's jurisdiction and best addressed by the NRC in its consideration of the companion filing made by Con Edison and ENIP2 to the NRC for approval of the transfer of the IPl and IP2 licenses. The current physical status of IP2 is also an issue within the ETR000073

CASE 01-E-0040 primary jurisdiction of the NRC. Compliance with the FSAR is solely an NRC matter and need not be addressed by the Commission. Finally, there is no reason to generically examine the future treatment of New York's nuclear plants in Case 98-E-0405, given this proceeding and Case 01-E-0011, related to the proposed sale of Nine Mile Point Units I and 2. The impacts of the move to a competitive marketplace have been addressed in the FGEIS and need not be repeated herein. As to the current problems with IP2, it is anticipated that the transfer to ENIP2 will result in superior management and oversight of the facility and a heightened focus on safety and reliability. The potential impacts of this transaction are addressed in Part VI. Town of Cortlandt/Hendrick Hudson School District The issues raised by the Town/School are generally addressed below and in Section VI. Applicability of the FGEIS: In Case 94-E-0952, and in conformance with SEQRA, the Commission issued the FGEIS to address the statewide environmental, social and economic impacts of a policy opening New York's electric markets to competition. The consideration of the divestiture of utility-owned nuclear power plants constitutes a subsequent action to the policy determinations made in Case 94-E-0952. Therefore, contrary to the Town/School's assertion, the use of this limited scope SEIS in this proceeding, rather than a new EIS, is appropriate. Under SEQRA, if the impacts found in this subsequent action are within the conditions and thresholds of the FGEIS, no further SEQRA analysis is necessary. However, an SEIS must be prepared if a potential significant adverse impact is found that was not addressed or adequately considered in the FGEIS. 6 NYCRR § 617.10(d) (4) . Because the likelihood that the transfer of IPl and IP2 from Con Edison to ENIP2 could result in significant impacts beyond those covered in the FGEIS, the companies were instructed ETR000074

CASE 01-E-0040 to prepare a draft SEIS. While many of the impacts identified in the SEIS are within the conditions and thresholds of the FGEIS, the impact on property taxes was determined to warrant additional mitigation than that addressed in the FGEIS. Impacts Related to the Possibility of Life Extension: Con Edison has the same ability to extend the life of IP2 under the No Action alternative as ENIP2 would have under the Proposed Action alternative. Therefore, this issue is not reasonably related to the proposed action and need not be fully analyzed in this SEIS. Moreover, the ability of the owner of IP2 (whoever it may be) to extend its license is subject to the NRC's review and approval. Should the sale be approved and ENIP2 decide at some point in the future to seek life extension, the NRC would commence a formal proceeding to consider the matter. Such a proceeding would include an environmental review to study the potential implications of a decision to extend IP2's license. That proceeding would be the appropriate forum for the Town/School to advance their concerns related to life extension. Consideration of a Third Alternative - Closure: IP2 is an operating nuclear generating facility. Recently, Con Edison spent over $150 million to replace the plant's four steam generators. ENIP2 has agreed to pay over $500 million to purchase the facility and related assets. These facts strongly indicate that IP2 is not likely to close in the near future. The action being considered by the Commission is whether to approve the sale of IP2 to ENIP2. It is not reasonably anticipated that ENIP2 would pay over $500 million, then close the facility. It is similarly unlikely that Con Edison would close IP2 in the event the transaction is not approved. Moreover, after recently completing an annual assessment of IP2, the NRC found that it is being operated in a 23-ETR000075

CASE 01-E-0040 manner that preserves public health and safety and has met all cornerstone objectives." 4 For these reasons, this SEIS need not address the impacts of the closure of IP2 as a reasonable alternative to the Proposed Action and No Action alternatives. Financial Ability of ENIP2 to Operate IP2: The issue of whether ENIP2 will have sufficient resources and access to funds to competently and safely operate IP2 and maintain IPl is an important issue that must be addressed substantively in the PSL § 70 proceeding. However, because it is an economic issue, it is not properly subject to environmental review in this SEIS. Moreover, the Town/School's contention that the consequences of ENIP2 not having sufficient resources includes significant adverse environmental impacts is without support. The likely possibilities in the event of ENIP2's inability to continue to operate IP2 (should the pending transaction be approved) include the sale of the assets or closure of the facility. No factual or substantive showing has been made that either event would lead to significant adverse environmental impacts. Completion of Case 98-E-0405: The Commission's generic assessment of the future treatment of New York's investor-owned nuclear generating facilities was pre-empted by the interest expressed in and subsequent potential acquisition of IP2 and Nine Mile Point Units I and 2 by prospective buyers. Because of these proposed transactions, there is no reason to continue to generically study the future rate and associated treatment of the facilities. However, should the 14 See IP2 Annual Assessment Letter from Hubert J. Miller, NRC Regional Administrator to John Groth, Senior Vice President Nuclear Operations for Con Edison, dated May 31, 2001, Attachment 4. ETROO0076

CASE 01-E-0040 071, pending transactions not be approved or consummated, the generic proceeding would likely resume. From the perspective of- environmental review, there is no need to complete a supplemental generic EIS prior to considering this transaction. All of the potential impacts associated with the Proposed Action can be and are d~scussed and analyzed in this SEIS. Moreover, a generic examination of all potential future implications for nuclear power, which would have been included in the supplemental generic EIS, are outside the scope of the instant proceeding and need not be considered in this SEIS. System Reliability: As explained previously, New York is transitioning from a heavily regulated, cost-based electric system to a competitive, market-based system. The cost of power is no longer set administratively through Commission rate proceedings. Rather, it is determined based on open market principles via agreement between generators and load serving entities and set forth bilateral power purchase agreements between the parties or participation in the New York Independent System Operator's day ahead, real time and other markets. Presently, there are over 20 new generating plants in various stages of construction or certification under PSL Article X.15 Additionally, there are a number of generating facilities under 80 MW either operating or slated to commence operations in the near future. While IP2 still comprises an important part of New York's system reliability, its importance will diminish over time as new facilities come on-line. While not all of these projects will be constructed, there should be sufficient capacity over the long-term to meet New York's energy needs. In the short-term, the PPA between Con Edison and ENIP2 ensures that Con Edison's customers will receive the output from IP2. 15 See http://www.dps.state.ny.us/xtable. PDF. ETR000077

CASE 01-E-0040 Accordingly, the Town/School's concern that the transaction documents do not require ENIP2 to sell all of the (En output of IP2 to Con Edison or within New York State is without merit and is inconsistent with the functioning of a competitive market. Given the PPA and the likelihood of substantial new generation in New York over the long-term, it is not reasonably foreseeable that this transaction, if approved, would have or lead to significant adverse impacts on system reliability. Light Regulation of ENIP2: The Town/School raise numerous concerns over the possibility that ENIP2 will be lightly regulated, and that such reduced regulatory oversight will lead to significant adverse impacts. While this issue is outside the scope of this SEIS, a brief response to this contention is warranted. Should ENIP2's request for lightened regulation in Case 01-E-0113 be granted, ENIP2 will still be subject to extensive state and federal regulation and oversight. For example, if the petition is granted, ENIP2 would likely still be required to comply with the Commission's safety regulations and numerous reporting and compliance requirements. ENIP2 must also likely be required to comply with all DEC and EPA permits, as well as pervasive NRC regulations. The Commission has approved the sale of dozens of generating facilities across the state to companies that qualified to be lightly regulated. To date, there have been no adverse environmental impacts associated with the operation of those plants that are any different from impacts that arose under their previous utility ownership. Moreover, the NRC and other state public service commissions have approved the sale of a number of nuclear generating facilities to limited liability companies similar to ENIP2. None of these transactions has resulted in significant adverse environmental impacts, or impacts different from those experienced by the facilities' former owners. Accordingly, it cannot reasonably be concluded that *J) ETR00078

CASE 01-E-0040 allowing ENIP2 to be lightly regulated is likely to lead to any significant adverse impacts, or any impacts that would be different from the impacts experienced by Con Edison under the No Action alternative. Impact of Common Ownership: As noted by ENIP2, IPI, IP2 and IP3 will not be under common ownership. However, there are likely to be some synergies related to consolidated operation of IP2 and IP3. The impacts of these synergies is addressed in Section VI. Impact of Improved Operations: The Town/School are correct that the draft SEIS was deficient in failing to acknowledge and evaluate the likely impacts of improved operations and an increased capacity factor for IP2 under ENIP2's ownership. This deficiency has been remedied in this SEIS, and the impacts and identified and addressed in Section VI. Potential for New Generation at the Site: The Town/School are also correct that the draft SEIS failed to. include any discussion of the possibility that ENIP2 and/or its affiliates may construct a new generating facility on the Site. This omission has been remedied and is discussed in Section VI. Decommissioning Concerns: The Town/School suggest that ENIP2's approach to decommissioning will be substantially different from Con Edison's approach, and that the impacts of these difference must be addressed in this EIS. This contention is unsupported by the record in this proceeding and applicable law. Both Con Edison and ENIP2 would have the same options available for the timing and manner of decommissioning and would be subject to the same NRC requirements and regulations pertaining to decommissioning. They would also be subject to the same consequences in the event DOE does not accept title to the spent nuclear fuel and/or if ETR000079

CASE 01-E-0040 there is no off-Site location at which to dispose of low level nuclear wastes. Under the ASPA, Con Edison will transfer $430 million in decommissioning funds to ENIP2 and ENIP2 will assume responsibility for decommissioning IP1 and IP2 and restoring the Site. The $430 million amount was determined in accordance with NRC guidelines and is considered sufficient to complete decommissioning. The possibility that this amount is insufficient is the same whether Con Edison or ENIP2 owns IP and IP2. In addressing this possibility, the NRC stated in NUREG-1628 that "[I] f there is insufficient money in the trust fund, licensees would be required to obtain the additional funds needed to complete the decommissioning of the facility." The Town/School's concern about the lack of a specific mandate for a specific decommissioning methodology is outside the scope of this proceeding. Con Edison has not committed to a specific manner of decommissioning, and none has been heretofore imposed on it. Moreover, because decommissioning is an issue under the NRC's jurisdiction, it would highly questionable whether the Commission could impose any mitigation measures related to decommissioning, even if potentially significant adverse impacts are found under the Proposed Action alternative. Regardless, because the potential range of impacts are the same under the No Action and Proposed Action alternatives, no mitigation measures are deemed to be necessary. Commitment to Full Site Restoration: Con Edison has never previously committed to decommissioning the Site to a "greenfield" status. However, in Con Edison rate cases in 1991 and 1995, Staff advocated that the decommissioning funding reserves assume a return of the site to greenfield status. This recommendation was adopted by the Commission and the funding was adjusted accordingly. In the APSA, ENIP2 expressly agreed to decommission the Site to a greenfield status. Should the transfer be approved and ETROO0080

CASE 01-E-0040 ENIP2 not ultimately restore the Site, a portion of the decommissioning funds transferred to ENIP2 will be returned to Con Edison's ratepayers. Thus, the treatment of this issue under the Proposed Action alternative is more favorable than under the No Action alternative. While the Town/School express apprehension that ENIP2 will follow through with this commitment, their concern is without merit. Given the express provisions of the APSA, the size of the decommissioning funds being transferred, the NRC minimum decommissioning funding requirement, the ability of ENIP2 to place IPl and IP2 in Safstor to allow the decommissioning fund to grow to a level needed to complete decommissioning, if necessary, and Staff's review of ENIP2's financial qualifications, it is not reasonably anticipated that ENIP2 will not satisfy its commitment to full Site restoration. Spent Nuclear Fuel Storage: The Town/School claim there is a significant concern over spent nuclear fuel storage and the fact that IP2's spent fuel pool will reach full capacity in 2004. While this matter is important, it is not related to the Proposed Action and the impacts under the Proposed Action and No Action alternatives are the same. For this reason, and as further discussed in Section VI, this issue need not be addressed in this SEIS. Contamination Remediation Plans: Con Edison prepared Phase I and Phase II environmental site assessments for the Site that included a historical records review, site walkdown, field measurements, and analysis of surface soil, borings and groundwater. The analysis showed a number of areas of contamination requiring remediation, slight residual radioactivity detected at locations of previous spills, and unusual occurrences involving the spread of contamination in and around the facilities, equipment, and site areas. Copies of the assessments were submitted to DEC, and Con Edison and ENIP2 have worked with DEC to prepare a ETROO0081

CASE 01-E-0040 comprehensive remediation plan. Attachment 3 contains DEC's letter approving the proposed plan. The APSA addresses the respective responsibilities of Con Edison and ENIP2 and does not restrict in any way future regulatory decisions on possible. remediation that may be necessary. Given these circumstances, there is no reason to further address this issue or to impose any additional mitigation measures. Should the Town/School have specific questions about the remediaton plan, they should be directed to DEC, the agency with statutory responsibility for overseeing satisfactory completion of the plan. Renewal of SPDES Permit: Attachment 2 to this SEIS provides a discussion of the historical setting of the IP2 SPDES permit. As explained by ENIP2, its affiliate, ENIP3, is a joint holder of the SPDES permit with Con Edison because of its ownership of IP3 and is already a party to the DEC SPDES renewal permitting proceeding. Currently, negotiations are underway between the involved regulatory agencies, Con Edison, ENIP3 and the other Hudson River power plant owners, environmental groups and others in an attempt to reach settlement on the issues related to the SPDES permit renewal. There is no support for the Town/School's position that the sale to ENIP2 would delay the permitting proceedings or that ENIP2 would approach the matter differently than Con Edison. In fact, ENIP3's and the other generators' involvement demonstrates the opposite--that there is no difference in approach between the former nuclear and other power plant owners and the new owners. Consideration of Alternate Sale Terms: The Town/School recommend that alternatives to the proposed transaction, such as a sale without a PPA, be considered. They claim in their comments that the reason for this proposal is to consider an option whereby ENIP2'would receive more revenues from the sale energy and have greater ETR000082

CASE 01-E-0040 financial strength. However, during the course of this proceeding, they have argued that the purchase price for IP2 would have been higher without a PPA, and thus, a higher real property tax assessment would have been justified. In either instance, this issue is outside the scope of the SEIS.16 Moreover, it is not reasonably anticipated that the Commission would consider approving the transaction without a PPA as that agreement adds substantial value to ratepayers. It provides a hedge against fluctuations in the price of energy and protection against increasing energy prices over the next three years. Segmentation: This SEIS addresses the impacts reasonably anticipated to arise if the proposed sale is approved. The SEIS is not a generic review, it is a site-specific analysis. The Town/School contend that this SEIS must generically evaluate a number of issues unrelated to the Proposed Action and which are either the same under the Proposed Action and No Action alternatives or are more properly addressed by other agencies in separate proceedings. A majority of the issues raised relate to matters solely within the jurisdiction of the NRC, and, given the Town/School's involvement in the NRC proceedings, they are the proper forum for addressing the Town/School's concerns. For these reasons and those set forth in Section VI, the Town/School's allegation that the Commission has engaged in impermissible segmentation under SEQRA is without merit. 16 Review of the price paid for the assets, while important in the PSL § 70 context, is an economic consideration and not an appropriate matter to be evaluated in the SEIS. 31-ETR000083

CASE 01-E-0040 VI. EVALUATION OF IMPACTS This analysis will examine the potential significant adverse impacts associated with the proposed sale of IPl and IP2 from Con Edison to ENIP2. A. Overview of Impacts The Commission's SEQRA evaluation of the impact of the move to a competitive electric generation marketplace on electric generating stations, including nuclear units, is discussed in the FGEIS. This Section augments the FGEIS by highlighting environmental aspects of the transfer of IPI and IP2 from Con Edison to ENIP2. Generally, while no significant or substantial modifications to IP2 and its supporting facilities are anticipated if the transfer is approved, ENIP2 is expected to improve operations at IP2. Much of this improvement is expected to occur in management philosophy, planning, employee and plant performance, and improved maintenance. Con Edison recently completed the installation of four new steam generators, a major capital improvement; no other significant capital improvements are anticipated, and ENIP2 has not identified any significant physical changes it would make to IP2.1 From an company-wide economic perspective, Con Edison entered into an energy PPA with ENIP2, effective from the date of the closing through December 31, 2004, for the output of IP2 (the agreement allows Con Edison to purchase IP2 power at an annual average price of 3.9 cents per kilowatt hour through the end of 2004, an amount close to or below anticipated market prices). Additionally, Con Edison and ENIP2 entered into an installed capacity power purchase/market power mitigation agreement for an 17 It is likely that ENIP2 will eliminate many of the duplicative structures at IP2 and IP3 (e.g., security gates and entrances). However, these changes are relatively minor and will not have any environmental impacts. ETR000084

CASE 01-E-0040 N extended time period. It is expected that these agreements, if approved, will help stabilize electric supply pricing for Con Edison's electricity customers and reduce the potential for a large generator in the State to profitably exercise market power. The development of the competitive energy market, which may affect the decision by power plant owners (including ENIP2) to run or retire generating units, exists irrespective of the transfer and consequently will similarly affect ENIP2 as it would Con Edison. Thus, the mere change in ownership is not expected to have a substantial impact on the decision whether to continue to operate or retire IP2. As a result, it can reasonably be concluded that the IP2 will be operated in a superior manner under the Proposed Action with no little or no impacts on Con Edison's customers. As will be addressed below, the anticipated changes are likely to have either no or positive environmental impacts as a result of the sale. B. Potential Impacts on Air Quality Under the No Action alternative, air quality impacts of the facility under continued ownership and operation by Con Edison are expected to remain as they currently exist. As discussed in Section VI.A. above, the change in ownership of IP2, if approved, is likely to result in the improved performance (i.e., increased capacity factor) of the facility. In that nuclear-fueled generating facilities produce virtually no air emissions, as the capacity factor of IP2 increases, reliance on coal-, oil-, and gas-fueled generating facilites may be reduced at certain times, thereby reducing overall air emissions. While there are three fossil-fueled Gas Turbines associated with IP2, there is no basis to believe that ENIP2 would operate them more frequently than Con Edison did. Therefore, it can reasonably be concluded that the Proposed Action would not result in any additional potentially significant or likely adverse impacts to air quality. It also can be ETR000085

CASE 01-E-0040 reasonably concluded that future air emission impacts of the ) facility would be approximately the same under the Proposed Action and No Action alternatives, while future air emissions impacts in New York State, generally, may be lessened under the Proposed Action and may assist the State in meeting its air quality goals. C. Potential Impacts on Water Quality Under the No Action alternative, water quality impacts of the facility under continued ownership and operation by Con Edison are expected to remain as they currently exist. As discussed in Section VI.A. above, the change in ownership of IP2, if approved, is likely to result in, inter alia, a higher capacity factor. While an increased capacity factor could require increased water usage for both steam generation and cooling purposes, all such water usage is governed by federal and state permits, including the SPDES permits described in Section IV. Because IP2 will continue to operate within the bounds of its existing permits, it is not reasonably anticipated that the Proposed Action would result in significant adverse impacts on water quality, including to Hudson River aquatic life. D. Potential Impacts on Visual Aesthetics Under the No Action alternative, visual aesthetics of the facility under the-continued ownership and operation by Con Edison are expected to-remain as they currently exist. As discussed in Section VI.A. above, the Proposed Action is not expected to result in any significant physical changes to the facility, or to have a substantial impact on the decision whether to continue to operate or retire the facility in the future. Therefore, it can reasonably be concluded that the Proposed Action would not result in any additional potentially significant or likely adverse impacts to visual aesthetics of the area surrounding IP2. It also can be reasonably concluded that the future visual aesthetic impacts of the facility would be ETR000086

CASE 01-E-0040 approximately the same under the Proposed Action and No Action alternatives. E. Potential Impacts to Land and Coastal Areas

1. Land Under the No Action alternative, Site impacts under the continued ownership and operation by Con Edison are expected to remain as they currently exist.

Site conditions have been delineated by Con Edison, which commissioned an investigation of existing on-Site environmental conditions in conjunction with the proposed transfer. In particular, Con Edison retained a professional consultant, Earth Tech, Inc., to perform Phase I and Phase II environmental site assessments for the Site and issued reports, dated January and March 2000, consistent with applicable industry standards. Briefly, the Phase I assessment consisted of: (1) a review of documents, including aerial photographs, maps and permits to identify past and current land uses at the Site and adjacent properties; (2) a search of environmental databases to determine if the Site or adjacent properties are listed as having any recognizable environmental conditions; (3) a walk-through of the Site and on-Site facilities to observe any signs of or potential for soil, groundwater, or surface water contamination; and (4) interviews with IP2 personnel relative to facility practices and the potential for presence of recognized environmental conditions on the subject property. The Phase I Assessment identified several areas of potential concern that received a further investigation and evaluation in the Phase II Assessment. The Phase II Assessment consisted of a collection of surface soil, subsurface soil, and groundwater samples appropriate to allow investigation and evaluation of the areas of potential concern identified in the Phase I Assessment. In addition, the Phase II Assessment also included a limited radiological survey of the Site. The Phase II results have been ETR000087

CASE 01-E-0040 provided to the DEC and to ENIP2. DEC has found Con Edison's final workplan for addressing the conditions found as a result of the Phase I and Phase II Assessments acceptable. See Attachment 3. Under the No Action alternative, the remediation of these environmental conditions remains with Con Edison. Under the Proposed Action alternative, ENIP2 and Con Edison have allocated their remediation responsibilities, as provided in the APSA. Therefore, it can reasonably be concluded that the Proposed Action would not reiult in any additional potentially significant or likely adverse impacts to land.

2. Coastal Areas As discussed in Section III above, IP2 is located proximate to the lower Hudson River. This segment of the Hudson River is part of the New York State coastal zone.18 Under the No Action alternative, coastal area impacts of the facility under continued operation by Con Edison would remain the same.

As discussed in Section VI.A. above, ENIP2, if permitted to purchase the Site, is not expected to significantly modify the existing structures at IP2, although operations are likely to improve. While improved operations could lead to increased water usage, ENIP2 must remain within the bounds of its SPDES and other water permits. Accordingly, it can reasonably be concluded that the Proposed Action will not result in any additional potentially significant or likely adverse impacts to the coastal zone in the area surrounding IP2. It also can reasonably be concluded that the future coastal zone impacts of 18 The New York State coastal zone includes Lake Erie, Lake Ontario, the St. Lawrence River, Niagara River, and the Hudson River south of the federal dam at Troy, New York, Long Island Sound, the New York City waterways, and the connecting water  %.q bodies. ETR000088

CASE 01-E-0040 the facility would be approximately the same under the Proposed Action and No Action alternatives. F. Potential Impacts on Plants and Animals Under the No Action alternative, impacts on plants and animals at or near the Site under continued operation by Con Edison would remain as they currently exist. As discussed in Section VI.A. above, the potential changes in operation resulting if the sale of IP2 to ENIP2 is approved would likely primarily relate to culture and management; significant physical changes are not expected. Therefore, it can reasonably be concluded that the Proposed Action would not result in any additional potentially significant or likely adverse impacts on plants or animals. It also can be reasonably concluded that any such impacts would be'approximately the same under the Proposed Action and No Action alternatives. G. Potential Impacts on Agricultural Land Resources The Site does not encompass any agricultural land tracks. Therefore, there are no potential impacts under either the Proposed Action or No Action alternatives. Con Edison's continued ownership and operation of IP2 is not expected to have any significant impacts on agricultural lands in the vicinity of the Site. While approval of the change in ownership would likely to lead to improved operations, such changes would not expected to have off-Site impacts. Therefore, it can be reasonable concluded that any impacts on agricultural lands in the vicinity of the Site would be the same under the Proposed Action and No Action alternatives. H. Potential Impacts on Historic and Archeological Resources There is an ancient Indian burial ground located within the northern wooded area near the on-Site pond. Under the No Action alternative, Con Edison's continued ownership and operation of the facility is expected to have no significant ETR000089

CASE 01-E-0040 impacts this or any other historical and archeological resources on-Site or off-Site. As discussed in Section VI.A. above, ENIP2 is not expected to significantly modify the existing structures at IP2 if the transfer is approved. while ENIP2 has expressed some interest in adding new generation to the Site (discussed below), ENIP2'p stated plans do not encompass the area of any known historical or archeological resources. Therefore, it can reasonably be concluded that the Proposed Action would not result in any additional potentially significant or likely adverse impacts on historical and archeological resources. I. Potential impact on Open Space and Recreation Under the No Action alternative, Con Edison's continued ownership and operation of the Site is expected to have no significant impacts on open space and recreation resources. None of ENIP2's contemplated changes or improvements at IP2, nor the proposed new generation, would be likely to change open space or recreation resources available to the public. While some areas of the Site may be used for the new generation, such areas are not open to and used by the public and cannot therefore be considered to be adversely impacted by the proposed sale. Therefore, it can reasonably be concluded that the Proposed Action would not result in any additional potentially significant or likely adverse impacts on open space and recreation. J. Potential Impact on Transportation Under the No Action alternative, IP2 continue to be operated by Con Edison in the same manner, and staffing levels, traffic volumes and flows would remain consistent with the current levels. Under the Proposed Action, ENIP2 is likely to bring efficiencies to the facility, and in combination with ENIP3, to eliminate duplicative functions and positions. Over time, the workforce at IP2 and IP3 is likely to decrease, resulting in lower traffic flows and volumes. The size of such decreases ETROO0090

CASE 01-E-0040 cannot be estimated with accuracy at this time, but are not expected to be significant. Other significant impacts on transportation (e.g., increased work force during refueling outages) are not expected to be significantly different between Con Edison and ENIP2. Therefore, it can reasonably be concluded that transportation impacts would be approximately the same or possible diminished under the Proposed Action as compared to the No Action alternative. K. Potential Impacts on Energy Issues relating to energy supply and reliability have been fully addressed in the FGEIS and need not be repeated herein. Under the No Action alternative, Con Edison's continued ownership and operation of IP2 is expected to have no significant impact on energy supply and reliability. As discussed in Section VI.A. above, the Proposed Action is not expected to have a substantial impact on the C ' decision whether to continue to operate or retire IP2 in the future. However, the potential change in ownership would likely result in improved operations and an increased capacity factor. These changes would increase the overall system capacity in New York and contribute to system reliability and satisfying energy demands. As discussed in the FGEIS, these are positive impacts and consistent with the move to a competitive electricity marketplace. Accordingly, the impacts on reliability and supply are likely to be more beneficial under the Proposed Action than under the No Action alternative, and, in any event, not be significantly adverse. L. Potential Noise and Odor Impacts Under the No Action alternative, Con Edison's continued operation and ownership of IP2 is expected to impact noise and odor in the same or similar manner as current levels. While the Proposed Action is likely to result in improved performance, the changed operations are not reasonably likely to result in different noise or odor emissions from

                                    -:9-ETROO0091

CASE 01-E-0040 current levels. Should ENIP2 decide to add new generation, potential noise and odor impacts associated with any specific proposal would be fully addressed in the PSL Article X siting process. Such impacts, if any, cannot be addressed herein because no specific proposal has yet been made and consideration of particular impacts would be speculative. For the foregoing reasons, it can reasonably be concluded that the Proposed Action would not result in any additional potentially significant or likely adverse noise or odor impacts, and that noise and odor emissions would be approximately the same under the Proposed Action and No Action alternatives. L. Potential Impacts on Growth and Character of Community or Neighborhood

1. Employment Impacts Under the No Action alternative, Con Edison's staffing at the facility is expected to remain at current levels. A certain level of fluctuation is to be expected, caused in large part by retirement, job transfers, resignations, changes in job classifications and work requirements.

Under the APSA, ENIP2 and Entergy Nuclear Operations, Inc. (ENO) are required to offer employment to substantially all IP2. employees and stabilize employment levels, at least for the next few years. However, over the long term, if the sale is approved, it is likely ENIP2, ENIP3 and ENO would take advantage of the synergies associated with jointly operating IP2 and IP3. One of the synergies is the elimination of duplicative positions. Thus, one impact of approving the transfer would be the potential for reduced staffing levels at IP2. ENIP2 explained that its intention is to reduce staffing through retirement, decreased use of outside contractors and natural attrition. Because ENIP2 and ENO do not contemplate lay-offs or large-scale terminations, it is not reasonable to C ETR00092

CASE 01-E-0040 conclude that the change in ownership would have a significant adverse impact on employment levels. Additionally, the APSA requires ENIP2 and ENO to maintain compensation and benefits for transferred employees that are at least equivalent to those provided by Con Edison at the time of closing. This obligation runs for three years for management employees and until the end of the applicable collective bargaining agreement for union employees. ENIP2 is required under the APSA to give transferred employees credit for all of their service with Con Edison, and must maintain pension plans that are identical in all material respects with Con Edison's pension plans. Further, ENIP2 is required to provide severance to transferred union employees whose employment is involuntarily terminated prior to the expiration of the collective bargaining agreement and to management employees whose employment is involuntarily terminated prior to three years after the closing. Given these contractual commitments, it is not reasonable to conclude that the Proposed Action would have a significant adverse impact on employee compensation or benefits.

2. Impact on Public Services Under the No Action alternative, public service demands associated with Con Edison's continued operation of IP2 are expected to remain essentially unchanged.

All of the changes ENIP2 would be likely to make if the transaction is approved would be internal to operations and management. None of the anticipated changes would be expected to impact public services. Moreover, because IPl and IP2 will continue to be subject to the same federal, state and local regulations and requirements, the demands on public services would not changes under the Proposed Action. Further, as discussed in Section VI.A. above, the potential sale to ENIP2 is not expected to have a substantial impact on the decision whether to continue to operate or retire IP2 in the future. Therefore, ETROO0093

CASE 01-E-0040 it can reasonably be concluded that the Proposed Action would not ,2j-result in any additional potentially significant or likely impacts on public services. It also can reasonably be concluded that the demands and impacts on public services would be approximately the same under the Proposed Action and No Action alternatives. N. Potential Impacts on Local Property Taxes Listed below are property taxes paid for IP2 for the past five years: Consolidated Edison Company of New York, Inc. Schedule of Taxes Paid on a Calendar Year Basis Indian Point Complex - Town of Cortlandt, Village of Buchanan Year Town School District Village Total 1999 7,198,802 15,994,047 1,886,753 25,079,602 1998 6,266,903 15,552,586 1,100,571 22,920,060 1997 6,683,592 15,181,926 1,884,299 23,749,817 1996 6,933,526 14,760,996 1,879,973 23,574,495 1995 6,765,961 14,155,746 1,876,635 22,798,342 Under the No Action alternative, it is anticipated that property taxes paid by Con Edison with respect to the Site would be consistent with applicable law, subject to then-current property assessments and Con Edison's efforts to either negotiate assessment reductions or payment in lieu of tax schedules or litigate the value of the Site under Article 7 of the Real Property Tax Law. The fact that a competitive auction process was used the sell the Site indicates that the value received is the fair market value of the property. The proposed sale, and other similar nuclear sales, also indicate that the property may no longer be considered a "specialty property" as that term is defined by New York case law. In that the current assessment indicates a value significantly in excess of the purchase price, it is possible ENIP2 would seek significant assessment reductions, perhaps greater than those sought in the future by Con Edison. However, ETR000094

CASE 01-E-0040 ENIP2 has reported that its preference is to negotiate a gradual assessment reduction over time, rather than engage in extensive and costly litigation. The impacts of a significant assessment reduction, whether through negotiation or litigation, were generally addressed in the FGEIS. However, additional mitigation of this potential adverse impact is warranted and is discussed in Section VII.

0. Potential Health and Safety Impacts The major health and safety concerns associated with IPI and IP2 relate to potential exposure of workers and the public to radiation. The NRC is responsible for setting standards and monitoring operator compliance with these standards so that operations do not result in an unreasonable risk of accidents that could expose workers and the public to harmful levels of radiation. Current regulatory policy is to keep radiation within certain limits and as low as reasonably achievable. Nuclear units that do not meet the regulatory requirements for exposure to radiation or otherwise violate safety requirements are forced to take actions, including shutting down the unit, until applicable health, safety and exposure requirements are met.

Under the No Action alternative, Con Edison's continued ownership and operation of Ipl and IP2 is expected to have no significant health and safety impacts. Under the Proposed Action, ENIP2 would be required to operate IP2 and maintain IPI in accordance with the same standards and requirements applicable to Con Edison. ENIP2 and ENO would be subject to extensive and stringent safety regulation by the NRC. Moreover, none of the anticipated operational or management improvements resulting from the change in ownership would impact adherence to these standards and requirements. Therefore, it can reasonably be concluded that the Proposed Action would not result in any additional potentially significant ETR000095

CASE 01-E-0040 or likely health or safety impacts. It also can reasonably be concluded that health and safety concerns and impacts at IP1 and IP2 will be approximately the same under the Proposed Action and No Action alternatives. P. Potential Impacts Related to Nuclear Materials This section addresses potential environmental impacts associated with nuclear materials used, generated and stored at IP1 and IP2.

1. Low Level Radioactive Waste Similar to any nuclear power plant, IP2 generates various amounts of low level radioactive wastes, temporarily stored on-Site prior to shipment for permanent disposal at a permitted off-Site disposal facility. The NRC, EPA, and DOT monitor the handling, storage, transport and disposal of low level radioactive wastes. The requirements imposed by these regulatory agencies are designed to ensure that public health, safety and the environment are adequately protected. IP2 has disposed of its low level radioactive wastes at the Barnwell facility located in South Carolina, which is one of the two commercial U.S. disposal facilities currently licensed by the NRC.

Under the No Action alternative, no significant change in the generation, handling and disposal of low level radioactive wastes by Con Edison is expected. Although one result of the Proposed Action is likely to be the improved operation of IP2, such improvement is not reasonably anticipated to produce significantly more low level radioactive waste than currently being produced. As to the waste produced, ENIP2 would be required to follow the same guidelines and regulations governing storage, transport, and disposal of low level radioactive wastes. Therefore, the Proposed Action is not expected to result in any potentially significant or likely adverse impacts related to the handling and disposal of low level radioactive wastes. C ETR000096

CASE 01-E-0040

2. Spent Fuel (High Level Radioactive Waste)

The basic fuel of a nuclear power reactor, including the reactor powering IP2 (and formerly, IPI), contains uranium-235 in pellets inside of metal rods (fuel rods). Before these fuel rods are used, they are only slightly radioactive and can be handled without any special shielding. During the chain reaction inside the reactor, the fuel rods become highly radioactive. The chain reaction involves the splitting of relatively heavy uranium atoms and creates radioactive isotopes of several lighter elements, such as cesium-137 and strontium-90 (called "fission products") that account for most of the heat and penetrating radiation. Some uranium atoms also capture neutrons from fissioning uranium atoms nearby and forms heavier-than-uranium elements like plutonium-239. These heavier, also called "transuranic", elements produce substantially less heat and penetrating radiation than the fission elements do, but they take much longer to decay. While the fission elements (cesium-137 and strontium-90) have half-lives of approximately 30 years", plutonium-239, for example, has a half-life of 24,000 years. As the chain reaction continues the fuel in fuel rods irradiates. At a certain time after the reaction has begun, the fuel is irradiated to the point where it no longer contributes efficiently to the chain reaction and becomes "spent fuel." Spent fuel is thermally hot as well as highly radioactive. It contains both the fission and transuranic elements. Periodically spent fuel rods must be removed from the reactor and replaced by new rods in order to sustain the chain reaction. In general, spent fuel rod assemblies are temporarily stored in on-Site water-filled pools. These pools are designed to safely store spent fuel while its radioactivity decays. However, the decay process, the only known process by which the radioactive waste 19 This means that half the radioactivity of a given quantity of these fission elements will decay in 30 years. ETROO0097

CASE 01-E-0040 finally becomes harmless, is very long. As explained above, for some isotopes contained in spent fuel, the decay process can take thousands of years. Thus, spent fuel must be stored in a way that provides adequate protection for very long periods of time. Permanent disposal of commercial spent fuel is the responsibility of the federal government. DOE has been mandated by Congress to develop a permanent storage facility and is currently evaluating and investigating a site in Yucca Mountain, Nevada, for such a repository. This repository is not expected to be operational before 2010 and, therefore, spent fuel continues to be stored in temporary on-Site storage facilities at individual reactor sites around the country, including IPl and IP2. This storage is authorized, controlled, and subject to NRC inspection, under the same NRC-issued licenses that authorize reactor operation. At present, IP2 is licensed to operate until 2013. At current burn levels, however, IP2's spent fuel pool can only accommodate additional spent fuel assemblies until 2004. Since 1994, a consortium of nuclear utilities, including Con Edison, has been working on the development of a centralized Independent Spent Fuel Storage Installation (ISFSI) to be located in the Western United States. The ISFSI is currently in licensing proceedings before the NRC. In addition, Con Edison has initiated engineering and licensing activities to enable it to build an on-Site ISFSI. This plan, if approved, will eliminate the need for an off-Site storage facility prior to decommissioning. ENIP2 reported that it expects to continue Con Edison's ISFSI initiatives. Under the No Action alternative, no significant change in the generation, handling and disposal of high level radioactive wastes by Con Edison is expected. Although the capacity factor of IP2 is likely to rise under ENIP2's management and oversight, should the sale be approved,'this increase would not cause more spent fuel to be ETR000098

CASE 01-E-0040 generated. Rather, it would cause the existing fuel to be more efficiently utilized. Thus, it is not reasonably expected that there would be any significant change in the generation of high level radioactive waste at IP2 as a result of the Proposed Action. Further, ENIP2 would be required to follow the same guidelines and regulations governing storage, transport, and disposal of high level radioactive wastes, and would be anticipated to approach the temporary spent fuel storage issue in a similar manner as Con Edison. Therefore, the Proposed Action is not expected to result in any potentially significant or likely adverse impacts related to the handling and disposal of high level radioactive wastes, and there are no significant differences between the Proposed Action and No Action alternatives.

3. Decommissioning Impacts.

The NRC extensively and comprehensively regulates decommissioning, including by requiring the establishment of CUR funding dedicated to paying costs attributable to decommissioning of nuclear units, including IPI and IP2, and remediation, if required, of the sites. Decommissioning is expected to occur at the end of the existing or extended NRC-issued license life of IP2. If an extension of the current NRC-issued license is sought, an application will be filed with the NRC at least five years prior to the expiration of the license. Current industry experience indicates that two to three years will be required to prepare such an application. It can be expected that ENIP2, under the Proposed Action, or Con Edison, under the No Action alternative, would seek a license extension, particularly if a license extension constitutes a prudent investment decision and IP2 provides needed cost-effective generation for New York State electricity customers. Con Edison currently maintains two decommissioning trusts for IPl and IP2, a Qualified Decommissioning Trust and a

*4y Nonqualified Decommissioning Trust.              The APSA requires Con Edison
                                        -. A7-ETR000099

CASE 01-E-0040 to transfer to ENIP2 at closing $430 million from the nuclear C> decommissioning trust funds maintained by Con Edison and other sources, to satisfy the minimum funding requirements of the NRC for decommissioning IP1 and IP2 at the end of the current license for IP2. On January 31, 1996, the NRC accepted a plan for the decommissioning of IPl, which provides that IP1 will be maintained in a safe storage condition until the end of the IP2's current license in 2013. Upon the approval and subsequent closing of the sale, ENIP2 would assume the responsibility for decommissioning IP1 and IP2. In addition, upon closing, ENIP2 would assume title to and responsibility for the management, interim storage and ultimate disposal of spent nuclear fuel at IP1 and IP2. If the transaction is approved, Con Edison also would assign, and ENIP2 would assume, Con Edison's rights and obligations under the Standard Contract for the Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste with DOE, excluding any claims with respect to damages to property or other economic loss of Con Edison pertaining to DOE's defaults under the Standard Contract accrued as of the closing date. As the FGEIS (page 6-45) states, the NRC has sole responsibility to assure adequate funding for decommissioning resulting from the transfer of nuclear generating units to private entities. Without limiting the foregoing, under the No Action alternative, Con Edison's continued ownership and operation of IP1 and IP2 is subject to the NRC's decommissioning requirements and it is reasonably expected that there will be no change in the method for funding decommissioning costs. Under the Proposed Action alternative, ENIP2 would be subject to the same decommissioning requirements. Additionally, the APSA requires ENIP2 to fully decommission and restore the Site to a greenfield condition at the expiration of IP2's operating license. Therefore, the Proposed Action is not expected to result in any potentially significant or likely ETROO0100

CASE 01-E-0040 adverse impacts related to decommissioning that are any different from the potential impacts of the No Action alternative. Q. Potential Impacts of New Generation Affiliates of ENIP2 have announced that they are evaluating the possible construction of a new fossil-fueled generating facility on the Site or adjacent to IP3. The potential size of the facility-would be over 80 MW, perhaps as large as 400 MW. While preliminary feasibility studies are being performed, there has not yet been any commitment to proceed with the project. If ENIP2's affiliates do proceed, the size of the project falls within the thresholds of PSL Article X, requiring approval of the New York State Board on Electric Generation Siting and the Environment. Article X is exempt from SEQRA but provides for an extensive review of the environmental impacts of any new generating facility. Until a specific project is proposed, it is not reasonably possible or practical to analyze potential environmental impacts. Given the requirements of Article X, the new generation will not avoid environmental review, and the local community and other interested parties will have a full opportunity to participate in the review process and ensure their views and concerns are heard. For the foregoing reasons, the impacts of the potential new generation at the Site need not be addressed herein. VII. MITIGATION OF IMPACTS One area of potential mitigation was identified in Section VI. IPl and IP2 comprise a significant portion of the Town of Cortlandt's and Hendrick Hudson School District's tax bases. As explained above, when the current assessments for the facilities are compared to the purchase price proffered by ENIP2, it is reasonably likely to assume that the assessments may be reduced. The effects of a large reduction could be lessened or ETROO0101

CASE 01-E-0040 avoided if the transition away from reliance on tax revenues received from the Site is gradual. Therefore, a non-binding mediation program is established to assist ENIP2 and the host community in alleviating this potential impact. The mediation program established herein shall not override or void any existing agreement between the parties, nor shall it be used or relied upon to alter any existing agreement. The mediation program will consist of the provision of the services of DPS Staff to facilitate a settlement or mediate disagreements in an effort to assist the parties, if they are willing, in seeking. a reasonable and expeditious resolution of assessment issues brought about as a result of the sale. Such involvement may be in conjunction with the services provided by the State Office of Real Property Services, and will be available upon the following conditions:

i. the parties have made reasonable attempts to resolve their differences themselves, first; and ii. the parties are willing to accept a phase-down of the assessment(s) over a period of years.

The goal of this program is to provide a means for ENIP2 and the host community to resolve their differences without the need for or cost of litigation. If the parties are unable to resolve their differences amicably and must resort to the Courts, the Commission will not impose any burdens, requirements or limitations on ENIP2 if the sale is approved. 2" It is recognized that there is a correlation between the percentage a generating facility comprises of a local tax base, the size of the reduction being sought and the impact resulting from such reduction. Therefore, the phase-down 20 Clearly, if any case proceeds to trial, the Court would be able to, and presumably would, impose any requirements it deems appropriate. No other obligations should be placed on NIP2 besides those required by the Court. ETR00102

CASE 01-E-0040 contemplated above should be scaled to the size of the reduction (i.e., the greater the reduction, the longer the phase-down period). Additionally, to ensure that the parties act in good faith and with the intent of truly resolving their differences, a public statement will be issued at the conclusion of the mediation sessions containing general comments about the process and indicating whether a settlement has been achieved. This statement, however, will not contain any discussion of confidential matters raised by any party or of negotiations between the parties or settlement offers made and rejected, nor will it assign blame on one party or another, except in extraordinary circumstances, if settlement is not achieved. The Commission's objective in setting up this program is to provide the parties an expeditious and confidential alternative to litigation. Therefore, although the program is not designed to be the same as binding arbitration, the parties should use this program with the intent not to engage in future litigation. Although this mediation program is not mandatory on either ENIP2 or the host community, they should both be encouraged to take advantage of it to assist in easing any impacts that may arise as a result of the change of ownership of IPI and IP2 and overall move toward competition in New York. Should the parties elect not to take advantage of this mediation program, they should nevertheless attempt in the first instance to seek to resolve any assessment disputes via a phase-down of the assessments over a period of years, rather than via large, immediate reductions. VIII. CONCLUSIONS AND RECOMMENDATIONS This final SEIS demonstrates that, with the adoption of the above mitigation measure, the proposed sale of IPl and IP2 by Con Edison to ENIP2 will be carried out in conformance with the conditions and thresholds established in the FGEIS and its ETROO0103

CASE 01-E-0040 findings statement, and will not have a significant effect on the environment. All conclusions contained herein were reached after a systematic and careful review of the detailed site-specific information provided in the draft SEIS submitted in this proceeding, the parties' comments, additional submissions by the petitioners and the other resources and documents mentioned above. Nearly all of the impacts found and considered had already been adequately addressed in the FGEIS, and in most cases, the mitigation measures identified in the FGEIS or adopted by the Commission in its findings statement are sufficient. In one instance, additional mitigation is recommended, as set forth in detail in Section VII. With the adoption of this mitigation measure, the requirements of SEQRA have been met. Consistent with environmental, social, economic and other essential considerations from among the reasonable alternatives available, with appropriate mitigation, the sale of IPi and IP2 under the terms and conditions set forth in the APSA avoids or minimizes potential significant adverse impacts to the maximum extent practicable. ETROO0104

CASE 01-E-0040 ATTACHMENT I Page 1 of 2 CONSOLIDATED EDISON COMPANY OF NEW YORK, INC Cases 94-E-0952, 96-E-0897 and 01-E-0040 Competitive Opportunities and SEQRA Milestones 7/5/95 Department of Public Service Staff (Staff) and Public Interest Intervenors jointly raised environmental concerns in the Competitive Opportunities of Bypass (COB), Case 94-E-0952. 11/17/95 Staff filed a motion with the Administrative Law Judge (ALJ) regarding SEQRA compliance, and at the same time, submitted a proposed environmental assessment form (EAF). 12/21/95 ALJ's Recommended Decision accepted the EAF and positive declaration and recommended that a Draft Generic Environmental Impact Statement (GEIS) be prepared. 2/13/96 Public Service Commission (PSC) issued a memorandum and resolution determining that PSC is lead agency and that the EAF supported a determination that there could be significant adverse environmental impact. 2/14/96 Notice of Positive Declaration was published in the Environmental Notice Bulletin (ENB). 3/6/96 PSC deemed the Draft GEIS was complete and a notice was published in ENB. 4/5/96 Comments were received on Draft GEIS. 5/3/96 PSC issued Final GEIS (FGEIS). 5/20/96 PSC issued Opinion and Order Regarding competitive Opportunities for Electric Service, Opinion No. 96-12 and SEQRA findings. 7/17/96 PSC issued Opinion and Order Deciding Petitions for Clarification and Rehearing, Opinion No. 96-17, clarifying the need for individual utility restructuring EAFs. 4/9/97 Consolidated Edison Company of New York,.Inc. (Con Edison) submitted a draft restructuring EAF in Case 96-E-0897 in connection with the parties' ETROOO 105

CASE 01-E-0040 ATTACHMENT I Page 2 of 2 March 12, 1997 Restructuring Agreement and Settlement. 9/9/97 Con Edison submitted a revised draft EAF based on the parties' August 29, 1997 Restructuring Agreement and Settlement. 9/23/97 PSC issued Order Adopting Terms of Settlement Subject to Conditions and Understandings, with finding that potential environmental impacts of restructuring settlement are within the bounds and thresholds evaluated in the FGEIS. 11/3/97 PSC issued Opinion and Order Adopting Terms of Settlement Subject to Conditions and Understandings, Opinion No. 97-16, with final EAF attached. 1/12/01 Con Edison and ENIP2 filed a petition under PSL

              § 70 for approval of the sale of IPl and IP2 and related assets; Case 01-E-0040 instituted.

1/22/01 Con Edison and ENIP2 filed a draft SEIS in 01-E-0040. Case *:: 2/01 - Informal comments on companies draft SEIS 3/01 solicited, received and analyzed. 4/25/01 PSC declared draft SEIS complete and issued it for public comment; PSC also directed that a notice be published in the ENB. 5/2/01 ENB Notice published inviting comments on the draft SEIS. 6/4/01 PSC issued Notice extending comment deadline on draft SEIS to June 21, 2001. 6/21/01 Comment deadline on draft SEIS; two sets of comments received. All of the foregoing documents have been considered in the preparation of this final SEIS and are incorporated herein by reference. ETROO0106

CASE 01-E-0040 ATTACHMENT II Page 1 of 4 Historical Setting of Indian Point 2 SPDES Permit On February 24, 1975, EPA issued a proposed NPDES permit for the Indian Point generating stations that would have called for a severe reduction in the amount of waste heat that could be introduced into the Hudson River. The practical effect of the proposed permit was to require the erection of cooling towers at Indian Point as a condition of continued operation. At substantially the same time, EPA proposed similar NPDES permit requirements for both the Bowline Point and Roseton Generating Stations. Between March and July 1975, Con Edison, Central Hudson Gas and Electric Corporation, and Orange and Rockland Utilities, Inc. filed requests pursuant to EPA's procedural regulations for adjudicatory hearings on the proposed permit conditions in their respective permits. By August 28, 1975, EPA formally announced its intent to conduct a hearing before an EPA administrative law judge that would address the appropriate conditions to be imposed in each of the subject NPDES permits. NYPA became a party to the proceedings upon its assumption of ownership and operation of IP3 from Con Edison. Consolidated administrative hearings continued intermittently until late 1980. On December 19, 1980, DEC, the State of New York, EPA, and the Hudson River power plant owners as well as various interveners in the EPA hearings entered into an agreement settling the EPA proceeding and related litigation (the "Settlement Agreement"). The Settlement Agreement constituted a complex exchange of commitments by and among the parties to resolve the issues underlying the lengthy hearings then in progress. Under the 10-year term of the Settlement Agreement, DEC agreed to issue permits allowing the utilities continued operation of their once-through cooling water systems. Among other things, the utilities agreed to: (1) install and maintain screens at Indian Point to protect fish from impingement; (2) construct and operate a striped bass fish hatchery; (3) deploy a barrier net at Bowline Point during certain times of the year to protect fish from becoming impinged; (4) maintain certain flow schedules regulating the quantity and timing of water intake at the plants; (5) comply with specified outage schedules for the plants in conjunction with fishery spawning cycles; (6) expend at least $2 million per year (in 1980 dollars) in biological monitoring of Hudson River species of interest; and (7) provide an endowment to establish the Hudson River Foundation. The Settlement Agreement by its terms expired 10 years from the date it became effective (May 14, 1981). While the ETROO0107

CASE 01-E-0040 ATTACHMENT II Page 2 of 4 Settlement Agreement provided for certain obligations to extend beyond its term, none of those obligations related to facility operating requirements. The Settlement Agreement provided in pertinent part that "at the expiration of said term no party hereto shall have any further obligations hereunder." In addition, the Settlement Agreement provided that promptly after its effective date:

          "DEC in accordance with applicable law shall issue to each of the Utilities SPDES permits for their respective Hudson River Plants which will permit, during the entire ten-year term of this Agreement, continued operation with the existing once-through cooling systems unaltered by thermal or intake requirements, subject only to performance by the Utilities of their respective covenants as set forth in this Agreement."

Individual SPDES permits for the Indian Point, Roseton, and Bowline Point generating stations were issued in April 1982 for a five-year term with an effective date of May 14, 1981, and were renewed October 1, 1987, with an expiration date of October 1, 1992, some 17 months after the Settlement Agreement expiration of May 1991. The terms of the 1987 SPDES renewal permits were virtually identical to the 1982 permits with the exception of an inserted Additional Requirement, which for Bowline Point and Roseton provided that DEC could seek permit modification based upon Settlement Agreement expiration or the results of biological monitoring studies, and for Indian Point allowed modification based solely upon biological monitoring studies. The Settlement Agreement required the installation of angled screens at the Indian Point units to enhance fish protection. However, in May 1984, after review and analysis, EPA and DEC notified Con Edison and NYPA that angled screens were not a desirable mitigation measure at Indian Point. After further research and review, a proposal for the installation of Ristroph screens was deemed generally satisfactory to both EPA and DEC; after additional modifications to these screens were agreed to by all the parties, the Settlement Agreement parties entered into an agreement in October 1988 for the installation of modified Ristroph screens at Indian Point. The term of that agreement was made co-extensive with the term of the 1987 Indian Point SPDES renewal permit, i.e., October 1, 1992. In addition, in separate letters to the Indian Point utilities both DEC and environmental groups that were parties to the Settlement Agreement acknowledged that modified Ristroph screens constituted the best available ETROO0108

CASE 01-E-0040 ATTACHMENT II Page 3 of 4 intake structure technology for Indian Point, stating that such screens were "the best technology available, or likely to be available in the foreseeable future, to minimize the impact of fish impingement in the cooling water intakes at Indian Point." Before the Settlement Agreement expired, DEC and the utilities commenced discussions concerning modification of the plants' SPDES permits to address post-Settlement Agreement SPDES conditions. These discussions led to the May 15, 1991, execution by DEC and the utilities of a Letter Agreement pursuant to which the utilities voluntarily agreed to various protocols for plant operations between Settlement Agreement expiration in May 1991 and SPDES permit expiration in October 1992. DEC also determined that the actions that the utilities volunteered to perform "are not modifications to the plants' respective SPDES permits..." The parties to the Letter Agreement further agreed to initiate good faith negotiations concerning draft terms and conditions for the 1992 SPDES permit renewals. The Letter Agreement was opposed by several organizations that had been party-interveners to the 1980 Settlement Agreement. This opposition was based in large measure on the lack of public participation in negotiations leading to the Letter Agreement. These organizations contended that the Letter Agreement was inconsistent with the SPDES permits since, in their view, certain terms of the expired Settlement Agreement continued as conditions of the SPDES permits. In September 1991 the Natural Resources Defense Council, Scenic Hudson Inc., and the Hudson River Fishermen's Association commenced an Article 78 proceeding against DEC seeking rescission of the Letter Agreement. In. November 1991 the utilities were permitted to intervene Settlement and Judicial Consent Order pursuant to which the parties agreed to suspend litigation until September 1, 1993, void the Letter Agreement, and continue various utility operational and funding programs. The parties also agreed to use their best efforts to conduct negotiations and finalize regulatory proceedings pursuant to the procedures established in the Consent Order with a view toward the issuance of final SPDES permit renewals by the fall of 1992. The Consent Order was subsequently extended by four amendments to accommodate the longer than expected SPDES renewal process outlined below. The last extension expired on February 1, 1998. On April 3, 1992, applications for the renewal of the SPDES permits for the Indian Point, Roseton, and Bowline Point generating stations were submitted by the utilities to DEC in accordance with the requirements of 6 NYCRR Part 755.2. On April 29, 1992, DEC determined that the renewal applications were ETROO0109

CASE 01-E-0040 ATTACHMENT II Page 4 of 4 incomplete because environmental assessment forms (EAF) had not been submitted. DEC directed the utilities to submit Part 1 of the EAF. The utilities submitted Part 1 in May and DEC completed the EAFs on May 26, 1992. Based upon its interpretation of the existing permit conditions, DEC determined that the permit renewals were unlisted actions requiring preparation of an EIS and review pursuant to procedures established under SEQRA. By letter dated July 16, 1992, the utilities agreed to participate in the EIS process but reserved their right to contest any determinations made by DEC in connection with the SEQRA process. The DEC commenced meetings of all interested parties, i.e., the utilities, and the environmental groups that had been parties to the Settlement Agreement, government agencies, and non-government organizations. At the same time the utilities prepared a Draft Environmental Impact Statement (DEIS), which was submitted to the DEC in July 1993. The DEC and others' review of the DEIS led to a series of technical workshops and a continuation of the DEC meetings of the parties. The meetings continued until October 1998, while the utilities responded to questions raised by the parties concerning the DEIS and continued to conduct further studies and various analyses of accumulating data regarding the state of the Hudson River and, particularly, of the fish populations identified by the parties of interest. Under mutual agreement, further meetings were postponed while the Utilities completed the revised DEIS. Con Edison, in conjunction with NYPA, filed with DEC a revised DEIS in support of an application for the renewal of IP2 and IP3's SPDES permit in December 1999. DEC's Notice of Completeness of Application for the DEIS was published in The Journal News newspaper on March 14, 2000. A legislative hearing was held on June 8, 2000 for the purpose of obtaining additional public comments. Additional meetings among all interested parties have recommenced. ETROO0110

ATTACHMENT Now York State-Department of Environmental Conservation M Division of Solid and Hazardous Materials, Region 3 a r 1,1 South Putt Comers Road. New Paltz. New York 12561.1696 phone,, (645) 256&3116 - FAX: (845) 25543414 I~L~ Website: www,-dectate.ny.us Apng. 2,2001 Mr. A. Alau Blind V=,Presi6dt, NIucear Power Com lidatd E mdis Company of Now York bndian Poa Stadoa Brcadwq and Bikldey Avmuo B1VzUan, NOw York 10511 Re: Work Plan, for Areas descxibe in Phase 1 Environmntal Site Assesmat - Mazrch 2000 Dmr Mr. BliUd The fnal work plan submitted to the Departmeat dated July 19, 2001 has bem reviewed and is acceptablo to the Dcpxrtxuma Attched to dis approval is a siped copy ofithe oturcaoc which a th w plan submittal.

                    -c,.he At this.faw al repoits and monhorng dat&gncuad u pan ofte approved wvrk plan should bo submnitted with one copy to aryselfand owe copy to Mr. Edward Miles, OiioC Evgineering GooloU Section. NYSDEC, 625 Broadway, Albany, New York 12233-7252.

If you have any queai*on, plaie fwl free to *oat m. Thomas 1.Kileem, P..E PRegionai Hasardous mzxtiai Bugieer cc: Ed, Miles, D)EC. Albany Al. Iloryk Consolidattd Edison Elise Zoli, Ooodw-&-Proczer LLP Carlos .rms, Westcbeste DOH ETRO0 0111

I

      ""    8mmwn tomm July 19,    2001 Mr. Tom X~een New York Stat Department of Envro     Nf Yo*.1 Conservation Division              and HazarousMaeil 21 South of    Solid Putt CornetR Now PaiR NY 12561-1696

Dear Mr. Killeem:

This letteoa MY earUl Ietr daed June 29,2001 p t your discussions withan3a Newk you ftt Duepa with of Envfronmdista Conmpany ofNew York, Iur. ("Can Edison aSd amU Nudlear Mdan Pointd2, L~, on Apri0th t &== our proposed 1ns to ad r tA4 Roa iW klen a by ButfTeh Cmpmio* as desPribed in IninPoint I & 2 Pinal Pbase 11 FzvironmenW Sime Aussesmcm dated Mac 2000. Con Edison now amends its proposed work plan to NTSDEC's yMour decoamedations and consemy as follows: L Propomed Actons A. &~a #7 - Gas TWA Gaertr Buildia Afctio d for your heri ad tldenmoredbethailed infCoroati identTyibthe i subs fs" e Thuacte as bazrera to mius-tion of ~ontamntion (e.g., utility t= wandia.ndit gI canal wall, rock outonmegs, foundalions,as well as infodmatircon00 sub-sio fomdrs, piping, support kh prwnt or or mpliNEC area excavation work (sL atwhmces). Pooition, In s

• Am act as banes to migrton of Ao.tAnire im in tu r includeetor utility tnnel wall to the north, disharge canal waU to to wu and a rock outmppi i the south, and east. The geeal site hydraulic Vrdient is to w south and wes In the unlikdy event tha pmoleum-wentaiae aial. were to rea the dischart canal, it would beinterp by a floating boo
• at is phargemncy installed in tho canal. This nfounation ) ams eiw low pmTendi for off-(ise atac on ofIntadintion fbroam fhisa ot a*oaa m As also n:ntioned in our discusions, Area #7 contutns waltriocl feeder cables, piping, and oisrequiment l are considered vital for tian o fthe low plo Thrisa NYVSDr lElieIazu72O0lb.doa lUbb ETROO01 12

I eqipen poses a sipnficaut amnserious obstcle to the practicai WcaVatiOu of soiks i Baswd on the above-refe=reced information, as well as the information provided in Con Edison's March 9, 2001 letter to you, them is a relatively low potential for offdsie migration and significant difcuty in obtaining access to the contaminated soils. Thereore, Con Edison proposes the following work plan:

1. Inspect and resample monitoring wels MW-10 and MW-109 for non-chlorinatad volatile organic compounds (VOCs) and polyimlear arnatic hydrocbons (PARs) id=fif* I*nNYSDEC's STARS #1 guidance. Tbis inial namplin d 'willbe compled by September 30,2001 and the zesulof will be provided to NYSDEC on or before November 15, 2001. Th"eafter, sample MW-103 and MW-109 semi-annualy for d volatile organic compounds (VOCs) and polymclcar an*ahtlc hydrocarbon (PA~s) identified in NYSDEC's STARS 111 gukdance,

2. IfI.NAPL is obs*rv-vd disu with NYSDC installaion of up to two additional monitocAg wells at mutually agreeable, accessmble locdom,, to tho -tIntsuch additelal wells v&ocesmsy to fhrter dafine the ommuIf such Aew wells are lnstas4lediee new wells and MW-10 and MW-109 will be pupd on a monthly basis f sitx momts to dete-mine *a pnre and thbirka of any LWAPL Addidoialy, tht new w'b, ifbisftala, would be ampled at dt ==mtime as MW 108 an4 MW-109 ding Any later sampling round. Any recoveable .LNALwould be ramoved (e.g., by bailer) a an interim measure.

3. Submit semi-ammual reports to NYSDEC with the results of all auging prodc ricov*y, and analytical VOC and PAH results duing the previous 6-month period. If a tkddtcu monftorig wells ate lnsulled assoclued boringiwll installation logs wil be povxdo to NYSDEC, vite in a 6-onh report *rin separat*e coryondew

4. Maintda mmnago*mnt cotrols for to area which inchu visual monitoring of storm drain catch basins and the associated outfalldischarge canal; and use of oil absorbent B- AiA . IS' Transformer Yard Afr t priod of bigh rainfa an oiiy sheen has been obsrved originating from a.catch basin located in the 15' EL-Von Traaskm= Yard. The outlet from thi catch basin bas been blocked ofl The original w=ce ofthis oil wes f*om the diesel gen= or building floor drains which are 6eoneted to the outlet head of a storm drain located imunedinztýy adacet to fhe diesel generator building. This headr empties to the 15' alevation manhole. Although the somue of the oil bas b elimited, high rainrl' Nlsh dii resitua film fiom the pIpe into the 15' elevatio catch basin where it is

©YSECW~72oO1b~dm l; ETROO0113

I

1. gbo*

C two mi-anualrundsof: d velaip* ow~aoio co~upo da (VQC*)forandnnffngwellMW-lll polynu~lcr smnziom for non-hydrocrbons (PAI) ideiti** ed in NYSDEC's STARS #1 gudanm The frst sampling romid will occur by September 30,2001.

2. Submit a report to NYSDEC vath all analyticdl resuts from. t ptwvIo mpling round. The first report shall be submitted tD NYSDEC on or before Novnber 15, 2001. and the second and final report abovt six months dhrafter.

3. Mainain th managmerd conrols for to maa, which inrcude dmmming of the am sorm drain, we of oil absorbent pigs, visl np-ctions, and rmoval of =y bluestone that may became stain**d as the result of area wa*rer ztion.

4. Consrudon or o*tr aatilas it ds area wll be coniolled by the pla wok control system to ensure that any disturbod soils arc properly managed fDr backfllling or remoal. Waste dhatezations ar normlly conducted for 1-Han Pofin C eAaa#1work.

1. Condact two sunl-aznwul rounds of sampling for monitoring W~l MW-1 01 and MW-13 ad walaze the smples for no-eblonari d volatile argn compounds (VOC#) and 3aoz-volale organic compounds (SVOCs) idmnfi~ed in )4YSI3ECs

            #1 guidane. "e firs smpling =d will occur by Sepmber 30,2001.
            #TARI

2. C*ntim *e smi-ammal pmundw-alr m. itog propun until the analydW ral mtz for tv6 consecutive, sampling events inl d thtoundlwater wet standards am m=4 at which time ANIAR will be rquee, and if anted the moniorin wels will be

3. S ta report to NYS with all analytiml reaut ftom The previous sampling rvumL Tba ftrst rept sall be aubmitted an or beime November 15, 2001, ond subseqn rapox Wwill be subaitwd =~ianmmllyý.

IL No Fnrthwr Action Raphled As we prtviously discussed, each of the tn (I0) rueaining areas idfled by EarthTe*h Coporati*.. In the Indian Point I & 2 Fina Phase II Environme*tl Site Assessment, dued M*.*h 2000, have been evaluated by Con Edison and NYSDME, and determined to require naurthe action. NYSDEC did requeat dd.tion information relating to Area

1. 6- Helip Trandarmne. Attaced per you request is the manift dat used to suport shipment of the ot-hazards oly debris generated is a reut of the Halipte Trousft cleaup work, The charsaci"An data for his sample is oontained in the Indian Polpt I & 2 Final Phase 11 Enviromnental Site Amssmaut dated M ch 2000.

Bvied on his additonal infonation, Con Edison requsn ta NYSDRC d*rmine that noYfjthe on is required. NYSDE~kMaw72,OOWbdoc LIbA ETROO01 14

I %_ m3 CoUcinaaon A&dwmcabxd above, we vuderstand that no ftrth= action is requined (TNFAR") for any of the areas identifed in the Phase II Evironmental Site Assemsmnu listed in Toble 1 of this le=.e, excpt for Ann 7, 8 and 11 for which only the above-deýd actions = red. Please countc-si below to provide NYSDEC's writtm concuzc to the acwd plans deso'ibed abovo fur Areas 7, &andit, u we2l as to provido confirmation of NFAR for dt remnW-a areas investigated in the Phase Ir study. This ltc=, once NYSDEC had indicated its ooncunroce below, shall constitute NYSDEC's deftnilaton ofNFAR for most of the areas westigated and fte specified actions that w required fort e r 'aRarm. At this time, w fixther noeximUi.0on In any pcrlt will occ, in light of the UAs recet rulaziaking. At suh timeas DEC dctdmines,whtha and to what extent shallnadopt simil rp=n sto its regulaizns, DEC may dammin whethar and how to manorlalize t above NFAI dMtAP ina sand comtiniing required actimn in an qppl~cabl p=31it In.paudleua Ezitert Nuclear indian PoiW 2, U.,wil requm csauptlo ftom EPA's mixed waste pamaitting requirteumits, to the full eftW allowable under 66 Federal Rcistm 27212 (May 16, 2001). ndmwill requcst such =m pto as soon es available under New York law. Alloattionof responsblity between Con Edison and Eizmu Nuolear IP2 for impl. n1on of Ns wok plan is establisW bytt Assmt Pmvhbsm and Sale zeapnt for diauPoW Gamling Saton, Units 1 mit2; 2adA (U Turbins Units 1, 2, and 3; ad Todvilic Training (APSA), which is aftached. Afetrnnsfer, pieas. forward aluff.i.l conspoandan to MiOWae. L inder, Sedw Vice Ptesident and Chief Opemliuig Of of Enftr Nuclar Indian Point 2, Lt4 440 -zacilton Avenue, Whift Plaing, New York 10611. Pdror transf], Esi= N. ZoVi, Esq, of Goodwin, Procta & Nowr LLP, is the teohnical contact pm for Eatm NMucler, and nay be reached ar(617) 570-1612. If you have any questions, please call Al Honmyk at (212) 460-2100 or Barry Cohen at (212) 460-291. A.Alan iB 0 Vice-Pread=Z Nucldoa Pow MY3VRkggnvts~r72001b~dog LibS ETROO01 15

I coNcURkm W~IT ANDJT AGREED To 13Y NYSDEC: Name V' ArdiJ (1) Table 1 - Siviinay of Arem Investigted (2) MhotOgrlph of Gms Tmixbn #1Am (3) Hazad~ow Wame Manifest CT F 0901391 (4) Isometi Diagram of Gms Turbine #1 Area Subsurf=~ F=Auw~ (5) The UAPSAr C Cr.: Tun Mcadozm, N'YSDEC - Albimy Bamy C~obe Roger Kqppo1 Dazvid Ruibin Al HctnYk Mise~Zoli (Goodwin-Proota LLP) Jem =in' Grachuik (God'win-Procte LL') Mr. Z'Cazio Tcnre (Wcghscd Co~y Deparm-m t of Health) 0 74YSflEd1eui8Ur72= b.4',c Libt ETROO01 16

ATTACHMENT 4 May 31. 2001 Mr. John Groth Senior Vice President - Nuclear Operations Consolidated Edison Company of New York. Inc. Indian Point 2 Station Broadway and Bleakley Avenue Buchanan. NY 10511

SUBJECT:

ANNUAL ASSESSMENT LETTER - INDIAN POINT UNIT 2

Dear Mr. Groth:

On May 8. 2001, the NRC staff completed its end-of-cycle plant performance assessment of Indian Point Unit 2 (IP2). The end-of-cycle review for IP2 involved the participation of all technical divisions in evaluating performance indicators (Pis) for the most recent quarter and the ispectio results for the period April 2. 2000 to March 31. 2001. The purpose of this letter is to kIroen you of our asseswstnOt of your safety performance during this period and our plans for future inspeclin at your facility. Overall, IP2 operated in a manner that preserved public health and safety. While IP2 met al cornerstone ob*ectlves, it remained In the Multipie/Repatitlve Degraded Cornerstone column of the NRC's Action Matrix. The degraded corerstones were based on several inspection findings and performance indicators in the initiatng events. mitigating systems, and emergency prepwardess corerstones. These degraded cornerstones am associated principally with perfornance problems identified during an August 1999 reactor trip with electrical distribution system complications, and a February 2000 steam generator tube failure (SGTF). Additionally, there were two white Pis that occurred during the assessment period in the initiating events and mitigating systems comerstones. Enclosures I and 2 provide additional details regarding performance indicators and significant inspection findings for degraded cornerstones. Several significant activities occurred over the assessment period. The plant began the assessment period In a cold shutdown condition due to the February 15, 2000, SGTF event. In August 2000, you initiated the SG replacement project which was completed in early November. The NRC noted generally good performance during SG replacement. Subsequently, the Plant was readied for startup, heatup began in December, and the reactor was brought critical on December 30. Although there were some emergent Issues during power escalation, the plant reached full power by the end of January. In parallel with your activities, the NRC completed a number of inspections and assessments. For example, our December 22, 2000, letter, highlighted, among other activities, system readiness walkdowns; augmented restart coverage by NRC Inspectors; and Inspection of emergent issues affecting design inputs and analyses, including an assessment of your corrective actions in addressing recurring issues. ETROO01 17

Mr. J. Groth During the time frame encompassing plant startup, you had a number of issues in design control. equipment reliability, problem identification and resolution, and human performance. In the area of design control. for example, a December 2000 inspection identified further examples of the lack of formal design interface controls, and weaknesses in your organization's ability to correct this condition. Equipment reliability issues were illustrated by secondary plant equipment problems which caused several power reductions in the plant restart phase. With respect to human performance. a January 2, 2001, turbine trip revealed problems with procedure quality and usage, crew communications, and reactivity management. Throughout this time frame, we monitored your corrective actions to address these issues. In January and February 2001. an extensive supplemental team inspection was conducted by 14 inspectors using NRC Inspection Procedure 95003. The team concluded that the IP2 facility is being operated safely. The team also noted problems similar to those that have been previously identified at the IP2 facility, Including those in the areas of design control, human and equipment performance, problem Identification and resolution, and emergency preparedness. While some performance improvements were noted, progress was slow overall and limited in some areas. One such area is that of design control, where recurrent problems have been noted, for example, in the translation of important design assumptions into plant operating procedures, drawings, calculations, and testing programs. Also, the team noted that although some improvement in your problem identification and resolution program has occured. aspects of your program warrant continued adetanon (e.g., prioritizing issues for resolution, trending causal factors, timeliness and the effectiveness of corrective actions). While the team noted that your business plan relies heavily on department level implementation strategies that varied In quality and depth, the team found that appropriate alignment exists between the business plan and previously kdenfed performance issues at the facility. We consider your May 7, 2001, letter captured well the nature of the issues that you are facing. We agree, as you stated in this response, that the issues facing IP2 are not amenable to 'fast fixes,' and that many of your improvement efforts will necessitate multi-year efforts. The NRC plans to carefully monitor the effectiveness of your performance improvement efforts, including the effect of any significant changes to your business plan or the department level activities either prior to or subsequent to any license transfer. In order to verify that appropriate conective actions have been taken to address the previously identified performance issues, the NRC plans to conduct several activities beyond the NRC baseline inspection program at the facility. These activities include supplemental inspections to review progress in addressing the underlying issues that resulted in the degraded cornerstones. These focused Inspections will also provide Insights into your performance improvement efforts. Enclosure 3 details inspections that are planned through May 31, 2002. The inspection plan is provided to minimize the resource impact on your staff and to allow for scheduling conflicts and personnel availability issues to be resolved prior to onsite arrival. Routine resident inspections are not listed due to their ongoing and continuous nature. Additionally, site visits, management meetings, and quarterly assessments, will be conducted as necessary. In this regard, we conducted a meeting on April 30, 2001, focused principally on design and engineering issues. ETROOO118

I Mr. J. Groth 3 Consistent with the Reactor Oversight Process. we are finalizing plans to meet with you to discuss NRC's assessment of your performance, and your continuing actions to effect performance improvement at IP2. This meeting, which will be open for public observation. is scheduled for 7:00 p.m.. June 13. 2001, at the Energy Education Center. Additionally, consistent with guidance in the NRC Action Matrix. the NRC considered the need for additional regulatory actions beyond those described herein, and has concluded that none are required at this time. The staff will contime to consider the appropriateness of additional regulatory actions as new performance information becomes available. Finally, in accordance with IMC 0305. "Operating Reactor Assessment Program," IP2 will be discussed at the upcoming Agency Action Review meeting. We wl notify you via separate correspondence if any agency actions change, as an outcome of this meetin. For your information, the NRC is in the process of aligning the inspection and assessment cycle with the calender year. In order to transition to a calender year cycle (January 1- December 31). the next inspection and assessment cycle will consist of only three quarters (i.e., the second, third and fourth calender quartets of CY 2001). As a result, for all plants a quarterly review will be conducted for the third calender quarter (July 1- September 30) in lieu of a mid-cycle review. In accordance with 10 CFR 2.790 of the NRC's 'Rules of Prctice." a copy of this letter and Its enclosure will be available electronicady for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at hWJ/wnm.goo/NCAM /i (tie Public Electronic Reading Room). To get Information about the assesasmet terms used inthis docurment refer to NRC's program for overseeing the safe operation of commercial nuclear power reactors. It is described in thetIRC Reactor Overnighd Process web site at httpJ/Awww.nrc.gov/NRR/OVERSIGHTfrndex.htnm-

• If circumstances arise which cause us to change this inspection plan, we will contact you to discuss the change as soon as possible. Please contact Mr. Peter Eselgroth at 610-337-5234 with any questions you may have regarding this letter or the inspection plan.

Sincerely,

                                                        /RA/

Hubert J. Miller Regional Administrator Docket No. 05000247 License No. DPR-26

Enclosures:

1. IP2 Performance History Chart

2. IP2 Performance History Details

3. 1P2 Inspection Schedule ETROO0119

Mr. J. Groth 4 cc w/encl: A. Blind, Vice President - Nuclear Power J. Baumstark. Vice President. Nuclear Power Engineering J. McCann. Manager, Nuclear Safety and Licensing B. Brandenburg, Assistant General Counsel C. Faison, Licensing, Entergy Nuclear Operations, Inc. W. Smith, Operations Manager C. Donaldson, Esquire, Assistant Attorney General. New York Department of Law P. Eddy, Electric Division, Department of Public Service, State of New York T. Rose, NFSC Secretary W. Flynn, President. New York State Energy Research and Development Authority J. Spath, Program Director, New York State Energy Research and De,'prnent Autxho The Honorable Sandra Galef. NYS Assembly County Clerk, West Chester County Legislature A. Spano. Westchester County Executive R. Bondi. Putnam County Executive C. Vandewhoef. Rockland County Executive J. Ramp. Orange County Executve T. Judeon, Cenblv NY Citizens Awareness Network M. Eris, Citizens Awareness Network D. Lochbaum. Nuclear Safety Engineer. Union of Concerned Scientists J. Riccio, Public Citizen's Critical Mass Energy Project M. Mariotte, Nuclear Information & Resources Service E. Smeloff, Pace University School of Law

0. Murphy. Manager, Training ETROO0120

Mr. J. Grath 3 Disbibution wience: (VIA E-MAIL) H. Miller. RA J. Wiggins, DRA F. Congel. OE (2) (RIDSOEMAILCENTER) R. Jenkins. RI EDO Coordinator W.Raymond. SRI - Indian Point 2 E. Adensam, NRR (ridsnrrdlpmlpdi) P. Eselgroth, DRP P. Milano, PM, NRR R. Laufer. PM. NRR R. Clark. PM, NRR

0. Screnci. PAO.

N.Sheehan. PAO S. Figuýa, OE S. Barber. DRP L. Harrison. DRP R.Junod. DRP R. Marn. DRP D. Bams, NRR S. Wong, NRR Region I Docke Room (wiconcurrences) DOCUMENT NAME: G:SBRMCH2UP2*¶P2EOCLtrfin.wpd After declaring this document An Oficial Agency Record* it will be released to the Public. T.Otr.W- a o~yf OftdocamwW IdcW InOw. box 'C - oijwade~duwiutdmdosumrF - d w4 OFFICE IR:DP I I RA I:DRP I R:R NAME SBarber /GSI/ BHolian ABlough /AkR/ RMiller

                                    /DER/il                                  /H*im/*

DATE 105/_3.1/0 05/31/01 05/31/01 05/31/01 __ OFFICIAL RECORD COPY 12 1 ETR000

EXHIBIT 5 SEP 04 Ud STATE OF NEW YORK PUBLIC SERVICE COMMISSION At a session of the Public Service Commission held in the City of Albany on August 29, 2001 COMMISSIONERS PRESENT: Maureen 0. Helmer, Chairman Thomas J. Dunleavy James D. Bennett Leonard A. Weiss Neal N. Galvin CASE 01-E-0040 - Joint Petition of Consolidated Edison Company of New York, Inc. and Entergy Nuclear Indian Point 2, LLC, for Authority to Transfer Certain Generating and Related Assets and for Related Relief. ORDER AUTHORIZING ASSET TRANSFER (Issued and Effective August 31, 2001) BY THE COMMISSION: INTRODUCTION On January 11, 2001, Consolidated Edison Company of New York, Inc. (Con Edison) and Entergy Nuclear Indian Point 2, LLC (Entergy) submitted, pursuant to Public Service Law §70, a joint petition seeking authority to transfer Con Edison's nuclear generating facilities and related assets to Entergy. The Administrative Law Judge assigned to this matter conducted a procedural conference on February 9, 2001. Subsequently, on March.16, the active parties submitted written statements of their positions and concerns about the proposed transfer. Initial comments were filed by Department of Public Service Staff (Staff), the State Attorney General's Office, Westchester County, the City of New York, the Town of Cortlandt,

CASE 01-E-0040 the Hendrick Hudson School District, Pace Energy Project, Environmental Advocates, Utility Workers Union of America (AFL-CIO Local 1-2) and Mr. John J. Mavretich. Thereafter, on April 5, 2001, Con Edison and Entergy initiated settlement negotiations pursuant to 16 NYCRR 3.9. The petitioners met with interested persons in an effort to address their concerns. Following the settlement discussions, on August 8, Con Edison, Entergy and Staff filed a Joint Proposal. The Joint Proposal recommends that we approve the transfer of the nuclear generation facilities on certain terms and conditions, and that we find that it is in the-pubic interest. By notice issued on August 8, 2001, interested persons were invited to comment on the Joint Proposal. Comments were received on August 17 from the Attorney General's Office and jointly from the Town of Cortlandt and the Hendrick Hudson School District. Also, on August 20, the Administrative Law Judge conducted an on-the-record conference with the active parties to discuss the Joint Proposal and the comments concerning it. While Cortlandt and the School District submitted comments on August 17, by letter dated August 28, 2001 they notified the Commission of their agreement in principle with Entergy concerning local property tax matters. As part of the Town's and the School District's agreement with Entergy, they immediately withdrew, without limitation, their intervention, appearance and opposition in this proceeding. Accordingly, Cortlandt's and the School District's withdrawn comments are not addressed in this order. THE JOIN-T PETITION Con Edison proposes to sell to Entergy its retired Indian Point 1 unit, its operating Indian Point 2 generating facility, three gas turbines, various ancillary facilities, the real estate in Buchanan where the facilities are located and the Toddville Training Center in Cortlandt. The real, personal and intangible property included in the sale are specified in the petitioners' November 9, 2000 Asset Purchase and Sale Agreement

CASE 01-E-0040 (APSA). Con Edison will receive $502 million (subject to various adjustments and prorations) plus the book value of its nuclear fuel and fuel oil inventories.' Con Edison will also transfer to Entergy $430 million held in decommissioning funds. Entergy will assume full responsibility for decommissioning the Indian Point units and restoring the site. Entergy will also take title to and be responsible for the ultimate disposal of the spent nuclear fuel used at the Indian Point facilities. In addition to the APSA, Con Edison and Entergy have executed various other agreements, including a Power Purchase Agreement (PPA), an Indian Point Continuing Site Agreement,2 a Guarantee Agreement,3 a Declaration of Easements Agreement,4 and 5 a Site Ground Lease. The PPA requires Entergy to sell to Con Edison (through 2004) all the energy that Indian Point 2 generates, except for the auxiliary power the facility consumes and 45 MW of station use energy. On average, Con Edison will pay $39/MWh In January 2001, the inventories had a book value of $107 million. 2 The Continuing Site Agreement addresses Con Edison's and Entergy's on-going relationship. It covers the services each provides the other, information reporting systems, communication protocols, interconnection matters, access to each other's property, and the testing, operation and maintenance of various systems and equipment. 3 The Guarantee Agreement executed by Entergy's parent, and

   'certain subsidiaries, secures the performance of Entergy's obligations up to the time of the closing.          Thereafter, certain post-closing financial assurances will be provided to Con Edison.

4 The Declaration of Easements Agreement specifies the access, operations, and maintenance easements that are being granted and retained by the parties. 5 The Site Ground Lease Agreement provides Entergy a 500-year lease for a parcel of land adjacent to the Buchanan Substation where two gas turbines are located. The lease permits Entergy to purchase the land if subdivision approval is obtained.

CASE 01-E-0040 for this electric energy.6 Entergy is not obligated to provide Con Edison any energy when Indian Point 2 does not operate; however, Entergy is committed to use commercially reasonable efforts to schedule'plant maintenance and outages outside the summer period. The petitioners have also asked us to determine that the assets being transferred are "eligible facilities" pursuant to the Public Utilities Holding Company Act. This determination would permit the Federal Energy Regulatory Commission (FERC) to treat Entergy as an exempt wholesale generator. THE JOINT PROPOSAL Terms and Provisions The Joint Proposal contains the regulatory terms and conditions Staff recommends, and the Petitioners would accept, to transfer the nuclear generation assets to a new owner. For the most part, it addresses market power concerns, accounting requirements, and ratemaking matters. The Joint Proposal addresses market power concerns related to Entergy adding 990 MW of net summer capability to the other facilities it owns and operates in New York. Con Edison not only would purchase the energy produced at Indian Point 2 pursuant to the PPA, it would also purchase the plant's installed capacity by entering into a Capacity Purchase Transaction Agreement (CPTA). Con Edison would purchase the plant's capacity through April 2005 and be able to exercise options to purchase the capacity for up to another six years if Energy does not commit it to a third party. Con Edison would be entitled to recover from ratepayers all reasonable payments it makes pursuant to the PPA and the CPTA. 7 The price for energy in the summer period (June through August) is $46.80/MWh. In other months the price is

  $36.40/MWh.

7 If, by the .Summer of 2005, the CPTA's capacity prices differ by more than 25% from the then current market prices, the agreement can be reopened.

CASE 01-E-0040 Any gain or stranded costs resulting from the sale of these facilities would be governed by the Commission's 8 In sum, Con Edison and Staff have outstanding rate orders. identified the types of costs that can be included in the calculation of the gain or loss, and they have agreed to a Staff audit of the costs Con Edison claims for their accuracy and reasonableness. The gain or loss would be deferred pending a 9 final disposition. The Joint Proposal also addresses: capital costs Con Edison incurred to reinforce the electric system for the Buchanan gas turbines; pre-paid nuclear refueling expenses; injury and damages; investment tax credits; Department of Energy charges; nuclear insurance matters; and, any proceeds available from claims and litigation. Con Edison will stop collecting nuclear asset costs in the Monthly Adjustment Clause (MAC) with the first MAC charge filed subsequent to the sale. Absent a Commission order to the contrary, the company will flow through to customers all payments made pursuant to the PPA and the CPTA. 1 Supporting Statements Con Edison and Entergy urge us to adopt the Joint Proposal's terms that resolve Staff's issues and address the relevant matters other parties raised. According to them, the proposed terms for the sale protect consumers and provide ratepayer enhancements. 8 Case 96-E-0897, Consolidated Edison Company of New York, Inc. - Electric Rates, Opinion No. 97-16 (issued November 3, 1977); Opinion No. 00-14 (issued November 30, 2000). 9 The Joint Proposal acknowledges that the costs Con Edison incurred to replace the Indian Point 2 steam generators are being examined in Case 00-E-0612. It recognizes that the company's right to recover its capital costs is subject to audit and any costs found to be unreasonable or imprudent will not be included in the computation of its regulatory assets or its credits from the sale. 10 To accommodate Westchester County, Con Edison has fully withdrawn its request to share in the savings that are expected from the PPA's electric price provisions.

CASE 01-E-0040 The petitioners assert tha-.t the sale of the nuclear assets is consistent with the competitive electric market we have fostered. They state that the divestiture of these assets conforms to the guidance given to public utilities when electric industry restructuring began. 11 They also point out that Con Edison conducted an auction to establish the assets' market value and to obtain the maximum amount for them. According to Con Edison and Entergy, the sale terms are advantageous because they minimize the risks to ratepayers that Indian Point 2 could be rendered uneconomic. In particular, they point out that Entergy will assume the financial, operating, decommissioning, environmental and market risks for the nuclear facilities. By virtue of the PPA and the CPTA, customers will obtain electricity price savings and hedges against high energy and capacity prices. Con Edison estimates that the PPA savings (based on current market prices) are between $60 and $100 million over the life of the agreement, all of which inures to customers. In support of the Joint Proposal, Staff states that the sale of the nuclear assets is structured to preserve electric service reliability. Staff evaluated the auction process Con Edison used and determined that it was conducted in a fair and reasonable manner. Staff also reviewed Entergy's winning bid and concluded that it is favorable. Staff has confirmed that Entergy has secured financing to acquire the assets and that it has the experience needed to operate the nuclear facilities in a competitive environment. Staff has also examined the petitioners' underlying transactions and agreements and considers them to be reasonable. Staff also notes that Entergy will provide continued employment for all Indian Point personnel except certain high-level managers. With respect to any horizontal market power Entergy may be able to exercise from owning other generation facilities acquired from the New York Power Authority and Indian Point 2, Staff is satisfied that the PPA precludes Entergy from obtaining 1 Case 94-E-0952, Competitive Opportunities in Electric Service, Opinion No. 96-12 (issued May 20, 1996).

CASE 01-E-0040 monopoly profits in the near term. Moreover, as additional generation facilities are constructed and begin to operate, Staff expects Entergy's relative market share to decrease. To guard against Entergy exercising power in the ICAP market that the New York Independent Operator operates, the CPTA provides a means of mitigating the potential for Entergy to profitably exert market power in this market for the next eleven years. COMMENTS CONCERNING THE JOINT PROPOSAL The Office of the Attorney General (OAG) is opposed to ratepayers paying stranded costs if the sale of the nuclear generation facilities fails to produce sufficient proceeds to cover book costs. It is also concerned about having access to the Indian Point facilities, records and personnel for the ongoing investigation of the steam generator replacements in Case 00-E-0612. According to Staff, the sale of the nuclear assets to Entergy is not expected to cover all of Con Edison's costs. 12 Staff estimates that Con Edison will incur a $154 million loss. OAG contends that any such stranded costs should not be recovered from customers. It believes that customers should only pay market-based prices for Indian Point. OAG urges that Con Edison's shareholders be assigned the risks and the cost of management's actions and the uneconomic investment in these facilities. In the circumstances presented here, OAG believes the Commission should adopt a rate adjustment disallowing otherwise prudently incurred costs. It urges us not to wait for any upcoming proceeding to rule on the proper treatment of these costs. With respect to the steam generator replacement investigation in Case 00-E-0612, OAG points out that the parties to the proceeding require continued access to pertinent Indian 12 The purchase price for the generation facilities is about

    $90 million less than their book value.         Con Edison also expects to incur about $7 million of divestiture-related costs on the transaction and must provide $15 million for the decommissioning trust funds.        Federal income taxes amount to about $21 million.

CASE 01-E-0040 Point information to submit testimony that is scheduled for April 2002. OAG believes Entergy should be required to preserve the plant documents and information it acquires as a result of the transfer and to make it available for use in Case 00-E-0612. DISCUSSION AND CONCLUSION The proposed sale of Con Edison's nuclear generation plants, and the associated facilities, generally comports with the policies the Commission announced in 1996 to open the electric system to competition and allow electric generation companies to compete to sell their power. In 1997, the Commission adopted a Con Edison rate plan and settlement proposal that substantially opened the competitive market for generation services in New York City and Westchester. Subsequently, in 2000, the Commission adopted a second rate plan that remains in effect until March 2005 and addresses Con Edison's opportunity to recover stranded and strandable costs remaining as of March 31, 2005. To its credit, the Joint Proposal elicited substantially less opposition than did Con Edison's previous rate proposals and restructuring plans. In this instance, the record provides substantial support for us to authorize the proposed transfer of the nuclear generation assets. Con Edison ran a fair and competitive auction process that produced an acceptable bid from Entergy. With respect to Staff's valid concerns about Entergy exercising horizontal market power, we are satisfied that the Joint Proposal provisions Staff obtained will adequately restrict any such opportunities and promote the operation of a competitive marketplace. With respect to the comments OAG submitted, we reject its proposal to address the ultimate recovery of Con Edison's nuclear stranded costs at this time. To do so would be contrary to the rate and restructuring plan in place that addresses Con Edison's opportunity to recover such costs. Instead, we are adopting the Joint Proposal's accounting provisions and ratemakingrequirements that permit the issue of stranded cost recovery to be considered in due course.

CASE 01-E-0040 Also, with respect to Entergy's acquisition of the Indian Point facilities prior to the completion of Case 00-E-612, OAG is correct that the transfer of the facilities should in no way hinder the parties' pending investigations. For purposes of that proceeding, parties should have the same access to the Indian Point records, personnel, and facilities as they would have had there not been a transfer. As to decommissioning matters, the Commission finds that the proposed sharing mechanism set for in the ASPA is acceptable. It provides that if Entergy does not immediately decommission the Indian Point generating facilities via dismantlement and removal at the end of the Indian Point 2 operating license (i.e., should Entergy place the plants into Safstor or decommission by entombment), 50% of the funds remaining in the decommissioning trust funds upon completion of the alternate or delayed decommissioning will be returned to ratepayers. This is a reasonable and fair allocation of the potential benefits and risks being transferred by Con Edison and being assumed by Entergy. In summary, we have considered the joint petition and the agreements Consolidated Edison and Entergy have executed to transfer the Indian Point facilities. We have also considered the Joint Proposal and its provisions addressing market power concerns, regulatory accounting and ratemaking matters, and various other concerns raised by Staff and other parties to the proceeding. Further, as discussed above, we have evaluated the comments provided by OAG that pertain to the Joint Petition and the Joint Proposal. All of this leads us to find that the proposed sale of the Indian Point nuclear assets is in the public interest and the transfer should be authorized pursuant to PSL §70. State Environmental Quality Review Act Findings On May 3, 1996, the Commission issued a Final Generic Environmental Impact Statement (FGEIS) in Case 94-E-0952, the Competitive Opportunities Proceeding, that addressed the statewide environmental, social and economic impacts of a policy

CASE OI-E-G040 opening New York's electric markets to competition. The FGEIS acknowledged that localized impacts could arise as a result of specific proposals for the divestiture of generating facilities presented by public utility companies. The approval of the sale and transfer of Con Edison's Indian Point 1, Indian Point 2 and related assets to Entergy constitutes a subsequent action to the Commission's policy determinations in Opinion No. 96-12 in Case 94-E-0952, and to the Commission's rate and restructuring decisions in Opinion No. 97-16. Therefore, under the State Environmental Quality Review Act (SEQRA), the Commission must determine whether the impacts associated with the proposed sale and transfer are within the conditions and thresholds of the FGEIS. The Commission issued a Final Supplemental Environmental Impact Statement (SEIS) on August 17, 2001 which analyzed the detailed site-specific, information provided in the draft SEIS submitted by Con Edison and Entergy as part of their PSL §70 filing. It also analyzed other factual information and considered the public comments received concerning the draft SEIS. The Final SEIS identifies and addresses the potential significant adverse impacts associated with Con Edison's divestiture of Indian Point 1 and Indian Point 2 and proposes mitigation to the maximum extent practicable. Determinations were made in the Final SEIS as to whether the impacts identified are within the conditions and thresholds of the FGEIS. Additionally, a comparison was made to the no action alternative to gauge the extent to which the impacts actually arose as a result of divestiture. One impact already addressed in the FGEIS that could warrant additional mitigation concerns the effect of the sale on local property tax revenues. The FSEIS identified additional mitigation for this impact that included encouragement for Entergy and the host community to negotiate a gradual change in the site's assessment and a voluntary mediation program to be facilitated by Staff. When the localized impacts identified are balanced against the overall benefits to be derived from the sale, it is

CASE 01-E-0040 clear that Con Edison's ratepayers, and the State as a whole, will be better off by the Commission approving this transaction. The separation of generation facilities from electric transmission and distribution facilities should lead to a competitive marketplace and reduced rates. Lower electric rates should in turn lead to economic growth and development in the State. Given the likelihood that Entergy will improve the performance and reliability of Indian Point 2, this transaction should contribute to the safe and continued operation of the plant and to system reliability. These goals greatly outweigh any potential localized impacts resulting from the sale. Accordingly, the Commission renders the findings contained in this section of its order regarding the environmental impacts associated with the sale of the Indian Point and related facilities. Pursuant to 6 NYCRR 617.11, the Commission certifies that, consistent with environmental, social and economic considerations from among the reasonable alternatives available and with the mitigation measures set forth in the Final SEIS, the approval of the sale and transfer of Indian Point and related assets avoids or minimizes adverse impacts to the maximum extent practicable and satisfies the requirements of SEQRA. The Commission's action is consistent with the applicable policies set forth in Article 42 of the Executive Law, as implemented by 19 NYCRR 600.5, and will achieve a balance between the protection of the environment and the need to accommodate social and economic considerations. Federal and State Regulation Con Edison and Entergy interpret the Public Utility Holding Company Adt (PUHCA) as requiring a finding that new ownership of a generating facility will benefit customers, is in the public interest, and does not violate state law, before Entergy can be afforded exempt wholesale generator (EWG) status for the Indian Point generating facilities. Entergy seeks this status so it may operate the facilities free of federal regulation intended for monopoly utilities. Entergy sees the requisite benefit for the public in its participation in the

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CASE 01-E-0040 wholesale competitive market, which should result in increased competition. Therefore, Con Edison and Entergy request that findings be made that the Indian Point generating facilities be determined to be "eligible facilities" as that term is defined by PUHCA §32, thereby allowing FERC to issue a decision qualifying Entergy for EWG status under federal law. In conformance with PUHCA and FERC's regulations,'13 the Commission finds that allowing the Indian Point facilities to become eligible facilities, with Entergy owning the plants (either directly or indirectly through one or more affiliates as defined under federal law) 14 will benefit New York consumers, is in the public interest, and does not violate New York law. These findings are made on the same basis that we have found that the transaction is in the public interest pursuant to PSL §70. The Commission determined in Opinion No. 96-12 that a competitive marketplace for the provision of electricity supply would benefit New York consumers and this transaction further that goal. Moreover, there is no violation of New York law in transferring the plants to Entergy. While Entergy will become an electric corporation under New York law when it assumes ownership of the Indian Point facilities, it is being accorded lightened regulation.15 This approach to regulation has been previously approved for generators that intend to participate entirely or primarily in the wholesale market. 1 6 Entergy, however, will still be subject to state regulation with respect to such matters such as enforcement, investigation, safety (subject to the NRC's 13 15 U.S.C.A. §79z-51; 18 C.F.R. §365. 14 15 U.S.C.A. §79b(a) (ii); 18 C.F.R. §365(a) (1) (i). is Case 01-E-0113, Entergy Nuclear, Order Providing for Lightened Regulation of Nuclear Generating Facilities (issued August 31, 2001). 16 See, e.g., Case 98-E-1670, Carr Street Generating Station, Order Providing for Lightened Regulation (issued April 23, 1999).

CASE 01-E-0040 jurisdiction over radiological matters), reliability and system

.improvements.

The Commission Orders:

1. The terms and conditions of the Joint Proposal, dated August 8, 2001, are adopted and incorporated as part of this order.

2. Consolidated Edison Company of New York, Inc. and Entergy Nuclear Indian Point 2, LLC are authorized, subject to the requirements of this order, to consummate the transactions set forth in the January 11, 2001 Joint Petition.

3. The Asset Purchase and Sales Agreement, the Indian Point Continuing Site Agreement, the Guarantee Agreement, the Declaration of Easements Agreement, and the Site Ground Lease are approved, subject to the requirements of this order.

4. The Purchase Power Agreement and the Capacity Purchase Transaction Agreement are approved, s~ubject to the requirements of this order.

5. No later than 90 days following the closing the sale and transfer of the nuclear assets, Consolidated Edison Company of New York, Inc. shall file with the Commission a statement of the amount of proceeds it received, the costs it incurred, and the company's proposed accounting and ratemaking treatment for the net proceeds, in conformance with the requirements of this order.

6. The findings on exempt wholesale generator status under the Public Utility Holding Company Act described in the body of this order are made.

7. The findings related to the Final Supplemental Environmental Impact Statement required under the State Environmental Quality Review Act described in the body of this order are made.

8. Entergy Nuclear Indian Point 2, LLC shall cooperate with the parties participating in Case 00-E-0612 and provide them access to Indian Point facilities, records, and personnel as is necessary and proper for them to effectively participate in that proceeding.

CASE 01-E-0040

9. This proceeding is continued.

By the Commission, (SIGNED) JANET HAND DEIXLER Secretary

EXHIBIT 6 FINAL ENVIRONMENTAL IMPACT STATEMENT By the NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION As Lead Agency Concerning the Applications to Renew NEW YORK STATE POLLUTANT DISCHARGE ELIMINATION SYSTEM (SPDES) PERMITS For the ROSETON 1 & 2, BOWLINE 1 & 2 AND INDIAN POINT 2 & 3 STEAM ELECTRIC GENERATING STATIONS, ORANGE, ROCKLAND AND WESTCHESTER COUNTIES HUDSON RIVER POWER PLANTS FEIS Accepted: June 25, 2003 Prepared by NYS Department of EnvironmentaI'Conservation Contact: Betty Ann Hughes, NYS DEC, Division of Environmental Permits 625 Broadway, Albany, NY 12233-1750 (518) 402-9167; bahuqchesqgw.dec.state.ny.us

FINAL ENVIRONMENTAL IMPACT STATEMENT NEW YORK STATE POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMITS For the ROSETON 1 & 2, BOWLINE 1 & 2, and INDIAN POINT 2 & 3 STEAM ELECTRIC GENERATING STATIONS TABLE OF CONTENTS EXECUTIVE

SUMMARY

.        ....................................                      1 PROPOSED ACTION ......................................                               5 Project History .....................................                           7 Perm itting Authority .............................                       7 The Hudson River Settlement Agreement ................                    7 Department SPDES Permits ........................                         8 Consent O rders .................................                         9 The Draft Environmental Impact Statements ............                  10 Public Hearings .........                      ....................... 11 Ownership Changes ............................                          11 Final Environmental Impact Statement ................                   12 REGULATORY SETTING ...................................                             13 Federal Clean W ater Act .............................                        13 NPDES Perm itting ..............................                        13 CWA §316(b) and Cooling Water Intake Structures ........                15 New York State Laws ...............................                           17 SPDES Permitting Program .......................                        17 Legislative Findings and Commissioner's Powers ..........               22 New York State Coastal Management Program ...........                   24 Hudson River Estuary Management Program ............                    24 Hudson River Valley Greenway Program ...............                    26 Endangered Species Act .........................                        27 The New York State Energy Plan ....................                     27 NYS Environmental Quality Review Act (SEQR) ...........                 28 MITIGATION AND ALTERNATIVES ...........................                            29 Available Mitigation Technologies .......................                     29 Alternatives Assessment .............................                         30 PUBLIC COMMENT 

SUMMARY

                ..............................              39 List of Com m entors .............................                      47 RESPONSES TO COMMENTS               ...............................                49
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Fish Populations - 1. "Cropping" (that, is, consumption of some portion of one or more populations) by power plants is not a legitimate use of NYS's fisheries and other aquatic resources. .49 The State's fish and wildlife .......................... 49 The State's waters ................................. 50 Ecosystem values .................................. 51 Impacts on the aquatic community .................... 51 Fish Populations - 2. Many species in the Hudson River system are actually declining. While the striped bass (SB) population is up, that increase may be the result of other management decisions and activities. Historic baseline or trend data is not substantially discussed .. ... ....... ......................... 57 Fish Populations - 3. Several commentors questioned one or more of the assumptions used in one or more of the population models; in particular, density-dependence is unproven ............ 59 Atlantic Tom cod ............................... 62 Striped Bass .................................. 63 W hite Perch . .................................. 63 American Shad .................................... 64 Bay Anchovy ...................................... 64 Fish Populations - 4. Climate, disease, and the changing ecology of the Hudson River system are not considered in the population m odels .. . . . . . .. . . . .. .. . . . . . .. . .. . . . . . . . . . . . . . 64 Clim ate Change ............................... 65 Rainbow Sm elt ................................ 66 Atlantic Tom cod ............................... 67 Com b Jellies . . ... ... ... .. .. ... ... .. .. ... .. .. .. 69 Zebra Mussels ................................. 70 Fish Population - 5. Thermal analyses need to be updated to reflect recent, more extreme conditions ..................... 71 Fish Protection Points - 6. Fish protection points (FPP) would provide operational flexibility but even less protection than conditions in the Hudson River Settlement Agreement (HRSA) .......... 76 Mitigation - 7. DEIS includes little information on barrier systems and acoustic deterrents .............................. 82 W edge-W ire Screens ............................ 82 Fish Barriers .. . .. .... ... .. .. .. ... ... ... . ... . .. 83 Acoustic Deterrent System .......................... 84 Mitigation - 8. The DEIS significantly overstates costs and energy impacts of closed cycle cooling ........................ 86 Mitigation - 9. DEIS alternatives and proposed action do not present a fair picture of available alternatives .................... 87 Other Topics - 10. The DEIS needs to consider effects of New York's recent conversion to a competitive energy market, take the State Energy Plan into account, or impose parity among facilities.

            . . . . . . *° . . . * . ...*                . .. . . . ..        °8. .                           8

-iv-

Other Topics - 11. Radiation discharges are not discussed in the DEIS, but should be ..................................... 90 Other Topics - 12. Several commentors expressed generalized opposition to renewal for one or more facilities .......... . 92 Please note that appendices are not available on the website. However, you may request one or more of the appendices by contacting Betty Ann Hughes at bah uQhesC@qw.dec.state.ny.us. List of Appendices ........................................... 93 F-I. Notices and Comments on 1999 DEIS . .. ........... F-II. Text of HRSA .................................. F-III. Fourth Amended Consent Order ................... F-IV. ESSA reports .................................. F-V. Other cited references and letters not readily available . .

-vi- (This page intentionally left blank.) EXECUTIVE

SUMMARY

The action before the New York State Department of Environmental Conservation (Department) is the decision whether to renew State Pollutant Discharge Elimination System (SPDES) permits which would allow three steam electric generating stations to discharge waste heat, a pollutant, to the waters of the Hudson River; the permits would also allow the facilities to continue to withdraw water from the Hudson River for use as cooling water. The three facilities are:

• Bowline Point (Units 1 and 2), West Haverstraw, Rockland County;
• Indian Point (Units 2 and 3), Buchanan, Westchester County; and
• Roseton (Units 1 and 2), Newburgh, Orange County (See Figure 1 in main text for general locations of all 3 facilities).

In December 1999, the owners and operators of the three facilities submitted a Draft Environmental Impact Statement (DEIS) to the Department which assessed the resources likely to be impacted by the facilities; evaluated alternative technologies and management strategies to mitigate impacts from each facility's operations; and proposed a preferred action intended to reduce the respective impacts. In March 2000, the Department accepted the DEIS for purposes of review and subsequently issued a Notice of Complete Application in the Environmental Notice Bulletin and in newspapers in the vicinity of each facility. Department staff have further reviewed the DEIS and conclude that, while it was acceptable as an initial evaluation and assessment, it is not sufficient to stand as the final document, and additional information as to alternatives and evaluation of impacts must be considered. These considerations have been undertaken by Department staff to develop a final environmental impact assessment. This Final Environmental Impact Statement (FEIS) consists of the original DEIS submitted by the facilities' operators; comments received on the DEIS; the Department's responses to those comments, with similar comments grouped for response purposes; plus expanded discussions of the regulatory setting and alternatives for mitigation of impacts from the operation of the HRSA plants. The Hudson River is rich with aquatic life, providing habitat for the early, sub-adult, and adult life stages of many aquatic species, including a number of game, commercial, and forage fish species. The Department's regulatory role includes limiting thermal discharges from each facility to ensure the survival of aquatic resources and also preventing aquatic organism mortality Page 1 of 93

resulting from impingement and entrainment at each facility's cooling water intake structure (CWIS).' To illustrate the magnitude of impacts of entrainment, Table 1 (below) uses data from the DEIS to calculate the average annual number of organisms of six of the fish species entrained by the three facilities. 2 If one assumes that all entrained fish die, as does the United States Environmental Protection Agency (USEPA) in its proposed rulemaking for cooling water intakes, then the total number of fish entrained is equal to total mortality from entrainment.3 Table 1. Estimated Average Numbers of Selected Fish Species Entrained Annually at Roseton, Indian Point, and Bowline Stations, Based on In-plant Abundance Sampling, 1981-1987.4 Plan Roseton Indian Point Bowline Total Species__ American 3,128,571 13,380,000 346,667 16,855,238 Shad Bay 1,892,500 326,666,667 81,000,000 409,559,167 Anchovy 1 River 345,714,286 466,666,667 13,814,286 826,195,238 Herring 5 I I Entrainment occurs when small aquatic life forms are carried into and through the cooling system as water is withdrawn for use in a plant's cooling system; impingement occurs when larger aquatic life forms are caught against racks or screens at the intakes, where they may be trapped by the force of the water, suffocate or be otherwise injured. 2 DEIS Appendix VI-1-D-2, "Estimated Total Number of Fish Entrained", and DEIS Appendix VI-1-D-1, "Estimated Number of Fish Killed Due to Entrainment", (both utilizing generator estimates of through-plant survival), and calculating the mean mortality over the years presented for each species at each facility. 3 National Pollutant Discharge Elimination System - Proposed Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities. USEPA Docket No. OW-2002-0049; see 67 FR 17122. 4 Figures are absolute numbers of entrainable life stages, including eggs, yolk-sac larvae, post-yolk-sac larvae, and some juveniles, of the species studied. 5 "River Herring" includes both Blueback Herring and Alewife, which are difficult to differentiate in their early life stages. It does not include other herring species like shad. Page 2 of 93

Striped 129,857,143 158,000,000 15,571,429 303,428,571 Bass White 211,428,571 243,333,333 13,257,143 468,019,048 Perch Atlantic No Data This No Data This No Data This No Data This Tomcod' Study Study Study Study Total 692,021,071 1,208,046,66 123,989,524 2,024,057,262 The generators attempted to estimate through-plant survival, and using those adjustments, the calculations result in a slightly lower number of fish killed by entrainment mortality, as shown in Table 2 (below). Table 2. Estimated Annual Entrainment Mortality of Six Fish Species at Roseton, Indian Point, and Bowline Stations, Using Generator Estimates of Through-plant Survival. Pla Spec~ie, Roseton Indian Point Bowline Total America 2,500,000 10,640,000 281,667 13,421,667 n Shad Bay 1,892,500 326,666,667 78,285,714 406,844,881 Anchovy River 277,142,857 371,666,667 11,085,714 659,895,238 Herring Striped 40,428,571 46,500,000 4,671,429 91,600,000 Bass White 130,000,000 138,666,667 8,071,429 276,738,095 Perch Atlantic No Data This No Data This No Data This No Data This Tomcod Study Study Study Study Total 451,963,929 894,140,000 102,395,952 1,448,499,881 6 No numbers are available for Atlantic tomcod because, for the source study, no collections were made during the early part of the season when Atlantic tomcod entrainment and mortality would be a serious issue. Page 3 of 93

Based on data presented in the DEIS and analyses in that and in this FEIS, Department staff conclude that the generators' estimates represent the lower boundary of the actual mortality range, that is, the actual mortality lies somewhere between the generators' number (low end) and 100% (upper end, all entrained organisms die). Later sections of this FEIS discuss the significance of entrainment mortality; other impacts of continued operation of the HRSA generating stations, including thermal impacts; and potential control or mitigation measures. As a result of the Department's further review of the DEIS plus the additional information and analysis provided by staff, a draft permit can be developed for each facility. Each draft permit will be based on this FEIS together with a detailed, site-specific application for that station and will contain a decision on the "best technology available" (BTA) to minimize entrainment and impingement mortality at that station. These BTA decisions are required by §316(b) of the federal Clean Water Act.7 Supplemental application materials relating to existing facilities and system designs are still necessary for each site. An individual draft permit will be issued for each site, but in general terms, each permit will require the covered facility to meet BTA by designating, as SPDES permit conditions, a compliance schedule to implement one or more of the technologies now available to substantially reduce entrainment and impingement mortalities from the cooling water intake at that station. 7 33 u.sýc. §§ 1251 - 1376 Page 4 of 93

PROPOSED ACTION The action before the New York State (NYS) Department of Environmental Conservation (Department) is the decision whether to renew State Pollutant Discharge Elimination System (SPDES) permits which would allow three steam electric generating stations to discharge pollutants, including waste heat, to the waters of the Hudson River. The permits, if renewed, would also allow the continued withdrawal of water from the Hudson River to be used as cooling water. The three facilities are: " Bowline Point (Units 1 and 2), West Haverstraw, Rockland County; ° Indian Point (Units 2 and 3), Buchanan, Westchester County; and " Roseton (Units 1 and 2), Newburgh, Orange County. Figure 1, on the following page, shows the location of the three generating stations Page 5 of 93

Fig. 1. General Location of HRSA Plantss HRSA Power Plants on the Hudson River E[J Power Plant

                                                                 ' " ". :
                                              .... V  . .

20 8 Scale about  % reduced from original. Page 6 of 93

Project History Permitting Authority Bowline Point, Indian Point, and Roseton steam electric generating stations are all facilities which were in operation prior to enactment of the federal Clean Water Act in 1972. The Department regulates Bowline Point, Indian Point, and Roseton pursuant to its authority as the State agency approved by the United States Environmental Protection Agency (USEPA) to issue SPDES permits. On October 28, 1975, the USEPA gave its approval to the Department to administer the federal National Pollutant Discharge Elimination System (NPDES) program by virtue of a memorandum of agreement signed by the Department's Commissioner, Ogden R. Reed, and the Acting Region II Administrator for the USEPA, Eric B. Outwater. The Department's SPDES program is set forth in Article 17 of the Environmental Conservation Law (ECL), with underlying regulations promulgated at 6 NYCRR Parts 700 et seq and 750 et seq. The Hudson River Settlement Agreement Prior to authorizing the NYS SPDES program, earlier in 1975, the USEPA issued NPDES permits for the Indian Point nuclear power facility and the Roseton and Bowline Point fossil fuel power facilities. All three permits contained conditions to restrict thermal discharges, that is, water heated by the process of cooling the condenser coils at the fossil plants and by the secondary cooling phase of the nuclear power generation systems. At the time those permits were issued, the operators of these Hudson River power plants, Consolidated Edison (Con Ed) for Indian Point Unit 2, the New York Power Authority (NYPA) for Indian Point Unit 3, Central Hudson Gas and Electric (CHG&E) for Roseton, and Orange and Rockland Utilities (O&R) for Bowline Point used once-through cooling systems, withdrawing cooling water directly from and discharging the warmed effluent back to the Hudson River. Among the issues considered by USEPA in issuing those 1975 NPDES permits were concerns regarding thermal discharges, cooling water intakes, and fish mortalities associated with the cooling water intakes. The USEPA's 1975 NPDES permits would have in effect required retrofitting of cooling towers at all three of these Hudson River power plants. In 1977, Con Ed, NYPA, CHG&E, and O&R (collectively, the "generators") sought an administrative adjudicatory hearing against the USEPA draft permits to overturn those cooling water intake conditions and other requirements of the 1975 NPDES permits. That and subsequent proceedings were joined by a number of other government agencies and non-governmental organizations (NGO's). Page 7 of 93

In 1981, after a number of years of adjudicatory proceedings, the generators signed the Hudson River Settlement Agreement (HRSA) to resolve the disputes relating to the USEPA's 1975 NPDES draft permits. 9 The HRSA was a 10-year agreement designed to obtain necessary data, impose needed analytical assessments, and develop an impact assessment to determine how best to mitigate impacts to the Hudson River from the three generating facilities. The HRSA was also executed by the USEPA, the NYS Attorney General, the Department, and involved NGO stakeholders including the Scenic Hudson Preservation Conference (Scenic Hudson), Hudson River Fishermen's Association (Riverkeeper), and the Natural Resources Defense Council (NRDC). The HRSA was effective for the ten year period from May 10, 1981 to May 10, 1991. The HRSA provided, among other things, for mitigative measures to reduce fish mortalities at each generation facility as a result of: (a) impingement of adult and juvenile fish on racks and screens at the plants' intake structures, and (b) entrainment of fish eggs and larvae through the respective units' cooling apparatus. Those measures included seasonal "outages", or discontinuing cooling water usage by ceasing plant operations. Those measures also included installation of variable speed pumps at Indian Point Units 2 and 3 within three and one-half years after the effective date of the agreement, to keep the volumes of Hudson River water used for cooling to the minimum required for efficient operation. In addition, the HRSA established a biological monitoring program for monitoring fish species and their life stages at different Hudson River locations during each season. Department SPDES Permits By statute, SPDES permits for surface water discharges have a maximum duration of five years.10 In 1982, the Department issued a SPDES permit to each of the facilities covered by the HRSA, including limitations governing the release of thermal discharges, and incorporating the terms of the HRSA agreement into the permit so that the environmentally protective mitigation measures set forth in the Agreement were included as conditions. These permits expired in 1987. In 1987, the Department issued SPDES permit renewals to each of the three HRSA generation facilities (Indian Point Units 2 and 3 were issued a single permit even though the two units had different owners). These most recent SPDES permits for Indian Point Units 2 & 3, Bowline Point Units 1 & 2, and Roseton Units 1 & 2 Generating Stations became effective on October 1, 1987, with a common expiration date of October 1, 1992. Again, along with 9 The complete text of the HRSA is included as Appendix F-II to this FEIS. 10 ECL§17-0817(1) Page 8 of 93

appropriate thermal discharge conditions, the HRSA agreement was incorporated into these permits and the HRSA mitigation provisions were continued as conditions for operation. Prior to the expiration of the 1987 permits, on April 3, 1992, the generators submitted timely applications to the Department for renewal of their respective SPDES permits. Pursuant to the New York State Administrative Procedure Act (SAPA) and the Department's implementing regulations, "[w]hen a licensee has made a timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency...".11 Also prior to the expiration of the 1987 SPDES permit, by correspondence dated May 15, 1991, the Department and the generators executed an agreement to continue the mitigative measures established in the 1981 agreement until SPDES renewal permits were issued. With respect to Indian Point Units 2 and 3, the letter agreement also memorialized Con Ed's and NYPA's commitment to install special fish protective screens to reduce fish impingement at the intake structures. In addition, the agreement provided that the parties would negotiate in good faith to develop a long-term resolution of: cooling water intake structures (CWIS), thermal discharges, fish mortality reductions due to mitigative measures, the costs of mitigative measures, and alternatives. Public notice was to be given of such negotiations and the parties expressed their understanding that intervener, including such groups as the Riverkeeper and Scenic Hudson, would be involved as participants in the negotiations. On September 13, 1991, Riverkeeper, Scenic Hudson, and NRDC filed a law suit against the Department and the four generators seeking:

• annulment of the May 15, 1991 agreement between the Department and the generators;
• participation by those three NGO entities in the permitting process; as well as
• resolution of outstanding issues regarding mitigation measures.

Consent Orders On March 23, 1992, the parties to that legal proceeding executed a judicially approved Consent Order resolving the matter which provided that the generators would continue the HRSA mitigative measures, such as the "outages" timed to reduce impacts to certain fish species, and to continue

          " New York State Administrative Procedure Act (SAPA) §401(2); 6 NYCRR Part 621.

Page 9 of 93

underwriting significant Hudson River fish species studies and data acquisition .12 The 1992 Consent Order was extended by the parties on four separate occasions, having expiration dates of September 1, 1994, September 1, 1995, September 1, 1997, and February 1, 1998. When the Fourth Amended Consent Order expired on February 1, 1998, the parties, who were by then actively engaged in negotiations regarding elements of draft SPDES permits, did not reach agreement to continue with a fifth extension of the Consent Order.' 3 However, the generators agreed to continue the mitigative measures included in the continuing SPDES permit and provisions of the Fourth Amended Consent Order until new SPDES permits were issued to them.14 The Draft Environmental Impact Statements On May 20, 1992, pursuant to the State Environmental Quality Review Act (SEQR), the Department issued a positive declaration requiring the generators to prepare an environmental impact statement regarding the 1992 applications for permit renewals."5 That determination was based on the Department's assessment that the measures proposed in the generators' 1992 renewal applications were less protective of the Hudson River and its aquatic resources than the HRSA terms had been. In June 1993, the generators submitted a preliminary Draft Environmental Impact Statement (DEIS) to the Department in accordance with the regulatory requirement to submit a draft environmental impact statement for the renewal of their respective SPDES permits. On September 3, 1993, the Department advised the four HRSA generators that it had reviewed the June 1993 preliminary DEIS and that their respective SPDES renewal applications remained incomplete pending receipt of additional information. The Department advised the generators of inadequacies of the preliminary DEIS, to which the generators later responded. 12 Natural Resources Defense Council, Inc., Hudson River Fishermen's Association, et al., v. NYSDEC, Consolidated Edison Company of New York, Inc., New York Power Authority, Oranqe and Rockland Utilities, Inc., and Central Hudson Gas & Electric Corp.. Albany County, Index No. 6570-91. 13 The Fourth Amended Consent Order is attached as Appendix F-III. 14 In the remainder of this FEIS, the general term "Consent Order" will apply to the entire series of extensions unless a particular date or extension is named.

            "s ECL §8-0109.4; 6 NYCRR §617.7.

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From 1993 to 1999, the Department, the generators, the New York State Department of Public Service (NYSDPS), the USEPA, the National Marine Fisheries Service (NMFS), the United States Fish and Wildlife Service (USFWS), Riverkeeper, NRDC, Scenic Hudson and New York Rivers United (NYRU) participated in an extensive effort to address numerous technical and procedural issues regarding the generators' plants, including conducting technical meetings or "workshops" of experts representing each participant or group, and conducting plenary meetings of all participants to draw together the technical and legal expertise devoted to resolving issues with the SPDES renewal applications for the HRSA plants. On December 14, 1999, CHG&E, Southern Energy New York (successor to O&R), Con Ed, and NYPA presented the Department with a revised DEIS. Department Staff reviewed the DEIS and issued a Notice of Complete Application dated February 28, 2000, which was published in the Environmental Notice Bulletin (ENB) on March 8, 2000, and in newspapers in the vicinity of the plants during the week following March 8, 2000.16. The Notice sought public comments on the DEIS, which were to be submitted to the Department by April 24, 2000. Public Hearings Subsequently, on May 2, 2000, the Department's Office of Hearings and Mediation Services issued a Notice of Hearing and Notice of Extension of Comment Period.15 The Notice of Hearing announced a public legislative hearing to receive unsworn statements about the DEIS at the Croton Village Hall, Croton-on-Hudson, New York, at 2:00 PM and 7:30 PM on June 8, 2000. The Notice also extended the public comment deadline from April 24, 2000 to June 24, 2000. The May 2, 2000, Notice of Hearing was also published in the ENB and in newspapers in the vicinity of the plants. These notices included the times and location of the June 8, 2000, public hearing and also identified eight locations where the DEIS was available for review by the public. Sixteen written comments were received, and seventeen individuals spoke at the hearings, including representatives of the generators, NGO's, individuals, and the Department. The Department also provided the generators with several pages of comments. Ownership Changes As part of NYS's energy market restructuring, the HRSA plants have undergone ownership changes since the submission of the DEIS. Indian Point Units 2 and 3 are now owned and operated by Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC. Bowline Point is now owned and operated by Mirant Bowline, LLC. Roseton is now owned and operated by Dynegy Northeast Generation. 16 Notices are included In Appendix F-I to this FEIS. Page 11 of 93

Final Environmental Impact Statement This Final Environmental Impact Statement (FEIS) consists of multiple sections. The fundamental underlying data and studies are contained in the 1999 DEIS, which is incorporated as part of this FEIS. An augmented discussion of the regulatory setting for and history of the proposed action in this FEIS augments the materials in the DEIS. The full texts of all comments received by the Department are included in Appendix F-I, and public comments are excerpted and summarized in Table 3 (page -) of this FEIS; a list of all commentors is provided at the end of Table 3. The Department's responses to public comments complete the FEIS. In the interest of responding most effectively to the submitted comments, Department staff grouped the comments under related themes and responded to each theme. Page 12 of 93

REGULATORY SETTING Federal Clean Water Act NPDES Permitting The basic federal law governing water pollution control in the United States is the federal Water Pollution Control Act (FWPCA), more commonly referred to as the Clean Water Act (CWA).' 6 Although the FWPCA itself dates to 1948, the CWA as we now know it was largely shaped by comprehensive amendments in 1972 which completely overhauled the existing system.1 7 The 1972 CWA is properly viewed as the starting point for modern water pollution control law. While the CWA has been amended several times since 1972, the heart of the Act which has remained intact is its system of regulating both direct and indirect discharges of pollutants into U.S. waters: the National Pollutant Discharge Elimination System (NPDES).'B The fundamental premise of the CWA, expressed in §301, is not to regulate an otherwise lawful activity, but to make unlawful the discharge of any pollutant from a point source by any person.1 9 Thus, the discharge of pollutants is not a right and may only be allowed as specifically provided in the CWA. The bulk of the CWA may, therefore, be viewed as a detailed and highly regulated exception to the "no discharge" rule of §301. Pollution control standards under the Act are of two general types: (1) effluent standards which limit the quality and quantity of pollutants discharged from the source, also called "technology-based" standards; and (2) ambient standards which limit the concentration of pollutants in a defined water segment, also called "water quality-based" standards. By establishing limits tailored to the nature of a discharge rather than its location, a uniform nationwide playing field was established that removed incentives for dischargers to relocate to other states to avoid treatment requirements. The focus of an ambient standard is on the capacity of the receiving water to absorb or dilute a given pollutant. Thus, water quality-based standards vary according to 16 33 U.S.C. §§ 1251 - 1376. 17 FWPCA Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816. 18 See CWA § 402; 33 U.S.C. § 1342. 19 "Pollutant" is defined as including solid, industrial, agricultural and other wastes, sewage, sludge, heat, rock, sand, and biological and radioactive materials; CWA § 502(6), 33 U.S.C. § 1362(6). "Point source" is defined as any "discernable, confined, and discrete conveyance"; CWA § 502(14), 33 U.S.C. § 1362(14). Page 13 of 93

the use of the receiving water - for example, recreational, industrial, or public drinking water - and on local conditions, such as the size and flow of the receiving water, its turbidity, and other factors unique to the segment. Technology-based effluent standards, on the other hand, do not focus on the qualities of the receiving water, but on the treatment a pollutant receives prior to its discharge. Technology-based standards define and mandate a level of effluent quality that is achievable using pollution control technology so that a pollutant's capacity to degrade the water segment into which it is discharged is lessened. Of the two, technology-based effluent standards dominate the CWA's regulatory system. Both of these standards are implemented and enforced through the NPDES permit program, administered by the USEPA. Under §402 of the CWA, a discharger must obtain an NPDES permit from EPA or from a state that has an EPA-approved program. 20 The technology-based and water quality-based standards are written into the permits and are tailored to meet the particular permittee's situation, such as the pollutant-producing operation, the type and amount of pollutants to be discharged and the condition of the receiving water. The CWA mandated development of water quality standards for water bodies and effluent limitations based on those standards, and it set forth tlhe mechanism for incorporating water quality standards into NPDES permits. States were required to adopt classifications of water bodies according to their best uses. They were also required to develop standards for various pollutants that would establish maximum levels of pollutants in water bodies that would be allowable so that the water bodies could retain their best uses. 2' These standards are then, in turn, incorporated into the NPDES permit as effluent limitations, along with any other relevant technology-based effluent limitations. NPDES permits may also contain other conditions a permittee must meet, such as requirements for monitoring and reporting effluent discharges.2 2 Discharge without a permit or in violation of its conditions may subject the discharger to an enforcement action by the federal or state government, which in turn may result in civil and criminal penalties.2 3 A noncomplying discharger may also be subject to enforcement by private individuals or groups under the Act's citizen suit provision.2 4 In sum, the NPDES permit program is the focal point of the CWA's regulatory system, and compliance with an NPDES permit's conditions is deemed to be compliance with almost all of the Act's regulatory provisions.2 5 20 CWA § 402(a) and (b), 33 U.S.C. § 1342(a) and (b). 21 CWA § 303, 33 U.S.C. § 1313. 22 40 C.F.R. §§ 122.41 to 122.50 (permit conditions). 23 CWA § 309, 33 U.S.C. § 1319. 24 CWA § 505, 33 U.S.C. § 1365. 25 CWA § 402(k), 33 U.S.C. § 1342(k). Page 14 of 93

CWA §316(b) and Cooling Water Intake Structures § 316(b) of the CWA provides that any "point source" discharge standard established pursuant to §§301 or 306 of the CWA must require that the location, design, construction, and capacity of CWIS reflect the "best technology available" (BTA) for minimizing adverse environmental impacts. EPA has defined a "cooling water intake structure" as the total physical structure and any associated constructed waterways used to withdraw water from waters of the U.S., extending from the point at which water is withdrawn from waters of the U.S. up to and including the intake pumps. EPA has defined "cooling water" as water used for contact or non-contact cooling, including water used for equipment cooling, evaporative cooling tower makeup, and dilution of effluent heat content.26 The intended use of cooling water is to absorb waste heat from production processes or auxiliary operations. CWA §316(b) addresses the adverse environmental impact caused by the intake of cooling water, not discharges into water. Despite this special focus, the requirements of §316(b) are closely linked to several of the core elements of the NPDES permit program established under §402 of the CWA to control discharges of pollutants into navigable waters. For example, §316(b) applies to point sources (facilities) that withdraw water from the waters of the U.S. for cooling through a CWIS and are subject to an NPDES permit. Conditions implementing §316(b) are included in NPDES permits on a case-by-case, site-specific basis. The majority of impacts to aquatic organisms and habitat associated with intake structures is closely linked to water withdrawals from the various waters in which the intakes are located. Based upon preliminary estimates from an EPA questionnaire sent to more than 1,200 existing power plants and factories, industrial facilities in the U.S. withdraw 27more than 279 billion gallons of cooling water each day from waters of the U.S. The withdrawal of such quantities of cooling water affects large numbers of aquatic organisms annually, including phytoplankton (tiny, free-floating photosynthetic organisms suspended in the water column), zooplankton (small aquatic animals, including fish eggs and larvae, that consume phytoplankton and other zooplankton), fish, crustaceans, shellfish, and many other forms of aquatic life. 28 Aquatic organisms drawn into CWIS are either impinged on components of the CWIS or entrained in the cooling water system itself. Impingement takes place when organisms are trapped against intake screens by the force of the water passing through the cooling water intake structure. This can result in starvation and exhaustion (organisms are trapped against an intake screen 26 See 66 Fed. Reg. 65259 (Dec. 18, 2001). 27 See generally, 65 Fed. Reg. 49071 through 4 (Aug. 10, 2000) and 66 Fed. Reg. 65262 (Dec. 18, 2001). 28 66 Fed. Reg. 65262 (Dec. 18, 2001). Page 15 of 93

or other barrier at the entrance to the cooling water intake structure), asphyxiation (organisms are pressed against an intake screen or other barrier at the entrance to the cooling water intake structure by velocity forces which prevent proper gill movement, or organisms are removed from the water for prolonged periods of time), descaling (fish lose scales when removed from an intake screen by a wash system), and other physical harms. 9 Entrainment usually occurs when relatively small benthic, planktonic, and nektonic organisms, including early life stages of fish and shellfish, are drawn through the cooling water intake structure into the cooling system. In the normal water body ecosystem, many of these small organisms serve as prey for larger organisms that are found higher on the food chain. As entrained organisms pass through a plant's cooling system they are subject to mechanical, thermal, or toxic stress. Sources of such stress include physical impacts in the pumps and condenser tubing, pressure changes caused by diversion of the cooling water into the plant or by the hydraulic effects of the condensers, sheer stress, thermal shock, and chemical toxemia induced by antifouling agents such as chlorine. 30 In addition to impingement and entrainment losses associated with the operation of CWIS, another concern is the cumulative degradation of the aquatic environment as a result of: (1) multiple intake structures operating in the same watershed or in the same or nearby reaches; and (2) intakes located within or adjacent to an impaired waterbody. Historically, impacts related to CWIS have been evaluated pursuant to CWA §316(b) on a facility-by-facility basis. While the potential cumulative effects of multiple intakes located within a specific waterbody or along a coastal segment are largely unknown, there is concern about the effects of multiple intakes on fishery stocks. 3" 29 66 Fed. Reg. 65263 (Dec. 18, 2001); see also Thurber, N.J. and D.J. Jude, Impingement Losses at the D.C. Cook Nuclear Power Plant During 1975-1982 With a Discussion of Factors Responsible and Possible Impact on Local Populations, Special Report No. 115 of the Great Lakes Research Division, Great Lakes and Marine Waters Center, Univ. of Mich. (1985). 30 66 Fed. Reg. 65263 (Dec. 18, 2001) citing Mayhew, D.A., L.D. Jensen, D.F. Hanson, and P.H. Muessig, A Comparative Review of EntrainmentSurvival Studies at Power Plants in Estuarine Environments, Environmental Science & Policy, 3:S295-S301 (2000). 31 66 Fed. Reg. 65263 (Dec. 18, 2001) referring to Request by member States of Atlantic States Marine Fisheries Commission to investigate the cumulative impacts on commercial fishery stocks attributable to cooling water intakes located in coastal regions of the Atlantic in 2001. Page 16 of 93

New York State Laws SPDES Permitting Program Pursuant to authority granted by Congress in CWA § 402, USEPA has authority to allow states to carry out specified permitting functions, which would otherwise be performed by USEPA, for discharges into both interstate and intrastate waters. New York State received USEPA approval of such authority in the form of a Memorandum of Agreement between the state and USEPA in October 1975. The Memorandum established the basis for the SPDES permit program in New York State in lieu of a federally administered program. Originally enacted in 1973, Article 17, Title 8 of the Environmental Conservation Law (ECL) authorizes The Department to administer the SPDES permitting program that governs the discharge of pollutants into the waters of the state at a given facility.' The purpose of ECL Article 17, Title 8 is: To create a state pollutant discharge elimination system (SPDES) to insure that the State of New York shall possess adequate authority to issue permits regulating the discharge of pollutants from new or existing outlets or point sources into the waters of the state, upon condition that such discharges will conform to and meet all applicable requirements of the [FWPCA]

               ... and rules, regulations, guidelines, criteria, standards and limitations adopted pursuant thereto relating to effluent limitations, water quality related effluent limitations ... 2 The discharge must also meet all applicable requirements of the ECL and the implementing regulations at 6 NYCRR Parts 700, et seq. and 750, et seq. The permitting objective is to prospectively control the discharge of point-source pollutants, including heat, by establishing chemical-specific limits and other requirements intended to assure that water quality standards in the receiving water body are achieved. Additional environmental objectives are to assure that aquatic communities are not unduly harmed by discharges, and to protect the public health and best usage of the water body.

Generally, thermal discharges to the waters of the State must meet water quality standards to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water.3 In addition, thermal criteria apply to all waters of the State receiving thermal discharges.4 These criteria may be modified upon application of a permittee to the Department if the Department finds them to be unnecessarily restrictive and that modification 32 "Pollutant" is defined as any "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand and industrial, municipal, and agricultural waste discharged into water." ECL § 17-0105(17). 33 ECL § 17-0801. 34 6 NYCRR § 704.1(a). 3s NYCRR § 704.2.

would still assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made.3 6 The discharge of heat as a pollutant, a "thermal discharge", is addressed in the Department's regulations at 6 NYCRR Part 704. In making a modification to thermal criteria, the Department typically imposes a "mixing zone" which limits the physical extent within which heated water can exceed specific applicable criteria.3 7 Outside of the mixing zone, thermal criteria must be met to assure compliance with water quality standards. Temperature limitations are established and imposed on a case-by-case basis for each facility subject to Part 704 jurisdiction. NYS has adopted the federal CWA §316(b) BTA requirement for CWIS as part of the Department's thermal discharge criteria at 6 NYCRR §704.5. The HRSA facilities which are the subject of this FEIS, Indian Point, Bowline Point, and Roseton, must demonstrate their compliance with water quality standards. 38 Since 1981, these facilities' operations, and their resulting thermal discharges, have been conditioned by their SPDES permits. Their current permits were due to expire in 1992 but were extended under SAPA. According to the Consent Order, the HRSA facilities were required to use their "best reasonable efforts" to operate the respective plants to keep the volumes of water withdrawn for cooling at the minimum required for efficient operation. 39 The original 1981 HRSA contained similar general language, and also provided charts for each facility which identified average maximum river temperatures and specified approximate flows for each unit at Indian Point and for all units at Bowline and at Roseton for different periods throughout the year. The thermal limitations associated with the HRSA facilities' existing SPDES permits include the following: Bowline Point: As of the 1987 - 1992 SPDES permit term, Bowline did not exceed the thermal criteria and a mixing zone did not need to be specified to meet the water quality standard. The use of multiport high velocity diffusers provided sufficient mixing with ambient water sufficient to meet thermal criteria. As a consequence, additional specifications to meet thermal criteria have not been imposed. The SPDES permit provides a daily maximum discharge temperature (1020F). 36 6 NYCRR § 704.4. 37 6 NYCRR § 704.3. 38 See App. F-Il. 39 See App. F-III. Page 18 of 93

Roseton: As of the 1987 - 1992 SPDES permit term, Roseton did not exceed the thermal criteria and a mixing zone did not need to be specified to meet the water quality standard and additional specifications to meet thermal criteria were not imposed. The use of multiport high velocity diffusers provided sufficient mixing with ambient water to meet water quality criteria. The SPDES permit provides a daily maximum discharge temperature (99'F). Indian Point: As of the 1987 - 1992 SPDES permit term, thermal discharges from Indian Point did not meet applicable thermal criteria. To control thermal discharges, the SPDES permit for Indian Point Units 2 and 3 requires that the maximum discharge temperature for condenser cooling water not exceed 110'F. In addition, the daily average discharge temperature between April 15 and June 30 is not to exceed 93.2*F for an average of more than ten days per year during the term of the permit, beginning in 1981, provided that it not exceed 93.2 0 F on more than 15 days during that period in any year. The Consent Order also provided that Indian Point give "due regard to ambient river water temperature, plant operating status, and the need to meet water quality standards or other permit conditions".1 Figures B-1 and B-2 to Attachment D of the Fourth Amended Consent Order provide graphic representations of "Predicted Condenser Cooling Water Flow Rate Schedules to Achieve Efficient Operations of Indian Point [Units 2 and 3]". That Consent Order provides that there may be some deviation from these schedules because "the minimum flow rate for any given period is dependent upon ambient river water temperature". These provisions alone, however, are not sufficient for Indian Point to meet thermal criteria. Thermal modeling indicates that the thermal discharge from Indian Point causes water temperatures to rise more than allowed, which is four degrees (F.) over the temperature that existed before the addition of heat, or a maximum of 83 0 F, whichever is less, in the estuary cross sections specified in 6 NYCRR §704.2(b)(5). 2 A mixing zone was not specified in the previous SPDES permit for the Indian Point facility. Even though thermal discharges from Bowline and Roseton meet water quality criteria, their thermal contribution to the Hudson River is additive with that of Indian Point and must be taken into account in determining whether the water quality standard is met. If the standard is not met, the circumstances can trigger the water quality standard requirement to assure the protection and propagation of a balanced, indigenous population. If analyses specified in the proposed SPDES permits are unable to make this assurance to the Department's satisfaction, the next level of action would be for the Department to determine how thermal discharges would be limited to ensure that water quality standards are met. 4o See App. F-III. 41 1999 DEIS, Appendix VI-3-A, Thermal Modeling of Ebb and Flood Tide Thermal Plumes (CORMIX model). Page 19 of 93

New York has adopted the appropriate regulations for the operation of the SPDES permit program, including standards for the development and issuance of permits as well as for the types of effluent limitations to be imposed in these permits. 42 In addition to the federally developed categorical effluent limitations, The Department has developed approximately 100 water quality standards for various pollutants in its regulations and less formal "guidance" values for many more pollutants.4 3 The Department has also categorized through regulation all significant water bodies in the State, based upon the best use of each water body." The Department's overall SPDES permitting activity is intended to implement the declared public policy of the State of New York that water resources not be wasted or degraded and "shall be adequate to meet the present and future needs for domestic, municipal, agricultural, commercial, industrial, power, recreational and other public, beneficial purposes.'-s Goals for water discharge permitting are also articulated in the ECL: Reasonable standards of purity and quality of the waters of the state be maintained consistent with public health, safety and welfare and the public enjoyment thereof, the propagation and protection of fish and wildlife, including birds, mammals and other terrestrial and aquatic life, and the industrial development of the state, and to that end, to require the use of all known available and reasonable methods to prevent and control pollution, wastage and unreasonable disturbance and defilement of the waters of the state.4 6 Any source proposing to discharge pollutants requiring a SPDES permit must file an application with The Department at least 180 days before the proposed commencement of the discharge 47 or, if renewing an existing SPDES permit, at least 180 days before the expiration of the existing permit.46 Submission of a timely renewal application continues the terms of the existing SPDES permit until the renewal permit is issued by the Department.49 If the Department determines to 42 See 6 NYCRR Part 750.1 4" 6 NYCRR Part 703; Department Technical and Operational Guidance Series (TOGS) § 1.1.1. 44 See 6 NYCRR Parts 701 and 800 to 941. 4' ECL § 15-0105(3). 46 ECL § 15-0105(7); see also, ECL § 17-0101. 47 6 NYCRR § 750-1.6 48 6 NYCRR § 750-1.16 49 SAPA § 401(2). Page 20 of 93

issue the permit, it prepares a draft permit, including proposed effluent limitations and other conditions.5 0 The Department is required to provide public notice of every draft SPDES permit which gives a description of the discharge and the terms of the draft permit, and sets forth a public comment period of no less than 30 days during which interested parties may submit written comments concerning the application.51 During the public comment period any person, including the applicant, may submit written comments or request a hearing. The Department is required to hold a legislative hearing to receive unsworn public comments if it determines that there is significant public interest and sufficient reason for such a hearing.5 2 If no hearing is held, only the written comment period occurs, and the Department will issue a final SPDES permit following the close of the public comment period. In certain instances, an adjudicatory hearing may also be held, where evidence and sworn testimony is presented before an Administrative Law Judge (ALJ). Any interested party, as well as the applicant, may request an adjudicatory hearing with respect to any aspect of a draft SPDES permit so long as the request is made during the public comment period.5 3 At such a hearing, parties have an opportunity to contest issues the AL) has determined to be adjudicable.5 4 The Department is required to determine the existence of the following facts in a SPDES permit renewal context:

1. That the permittee is in compliance with or has substantially complied with all the terms, condition, requirements, and schedules of compliance of the expiring SPDES permit;

2. That The Department has up-to-date information on the permittee's production levels, waste treatment practices, and the nature, contents, and frequency of the permittee's discharge, pursuant to new forms and applications or monitoring records and reports; and

3. That the discharge is consistent with currently applicable effluent and water quality standards and limitations, and other legally applicable requirements. 55 Upon a determination of the existence of these facts, the Department may issue a renewal permit.

The Department also has authority to modify SPDES permits for a number of reasons, including significant changes in a discharger's operations or new

          '0 6 NYCRR § 750-1.9 Si 6 NYCRR § 750-1.9 52 6 NYCRR § 750-1.9 13 6 NYCRR § 750-1.1(d) 5  6 NYCRR § 624.4(b)(5), (c) s 6 NYCRR §750-1.16 Page 21 of 93

information, such as the promulgation of new standards by either the State or USEPA. 5 6 Permits can also be modified or revoked in response to violations 5 7 of permit conditions, misrepresentations by the permittee, or changes in conditions. Legislative Findings and Commissioner's Powers In enacting legislation to preserve and protect the water resources and wildlife of the State of New York, the NYS Legislature made findings of fact and vested the Commissioner of the Department of Environmental Conservation with broad powers and authority germane to the regulation of electricity generating facility operations that use and impact such resources. The Legislature has found: The State of New York owns all fish, game, wildlife, shellfish, crustacea and protected insects in the state, except those legally acquired and held in private ownership. Any person who kills, takes or possesses such fish, game, wildlife, shellfish, crustacea or protected insects thereby consents that title thereto shall remain in the state for the purpose of regulating and controlling their use and disposition.5 8 The general purpose of powers affecting fish and wildlife, granted to the department by the Fish and Wildlife Law, is to vest in the department, to the extent of the powers so granted, the efficient management of the fish and wildlife resources of the state. Such resources shall be deemed to include all animal and vegetable life and the soil, water and atmospheric environment thereof, owned by the state or of which it may obtain management, to the extent they constitute the habitat of fish and wildlife as defined in § 11-0103 .... 59 New York State has been generously endowed with water resources which have contributed and continued to contribute greatly to the position of preeminence attained by New York in population, agriculture, commerce, trade, industry and outdoor recreation. 60 All fish, game, wildlife, shellfish, crustacea and protected insects in the state, except those legally acquired and held in private ownership, are owned by the state and held for the use and enjoyment of the people of the state, and the state has a responsibility to preserve, protect and s 6 NYCRR § 750-1.18 57 6 NYCRR § 750-1.20 s" ECL § 11-0105.

          -9 ECL § 11-0303(1); see also, ECL §s 11-0303(2) and 11-0305.

60 ECL § 15-0103(2). Page 22 of 93

conserve such terrestrial and aquatic resources from destruction and damage and to promote their natural propagation. 6 ' It is in the best interests of this state that provision be made for the regulation and supervision of activities that deplete, defile, damage or otherwise adversely affect the waters of the state and land resources associated therewith.6 2 The Department Commissioner has the power to: Promote and coordinate management of water, land, fish, wildlife and air resources to assure their protection, enhancement, provision, allocation, and balanced utilization consistent with the environmental policy of the state and take into account the cumulative impact upon all such resources in making any determination in connection with any license, order, permit, certification or other similar action or promulgating any rule, regulation, standard or criterion.6 3 Provide for the propagation, protection, and management of fish and other aquatic life and wildlife and the preservation of endangered species. 6 4 Provide for the protection and management of marine and coastal resources and of wetlands, estuaries and shorelines.65 New York State Coastal Management Program The NYS Coastal Management Program was developed under authority of New York State Executive Law 910-22 and 19 NYCRR Part 600. The operative sections of the Executive Law provide 11 points of policy that have been detailed in a single set of 44 decision-making criteria in the Coastal Management Program and final environmental impact statement. The Department, as a state agency, must find that all direct and funding actions, and any permitting actions that are the subject of an EIS under SEQR, are consistent with the Coastal Management Program.66 In addition, SEQR regulations provide that, for any state agency action in a coastal area, a draft EIS must contain an identification of the applicable coastal resources/waterfront revitalization policies and a discussion of the effects of the 61 ECL § 15-0103(8). 62 ECL § 15-0103(13). 63 ECL § 3-0301(1)(b). 6' ECL § 3-0301(1)(c). 65 ECL § 3-0301(1)(e). 66 6 NYCRR 617.9(e); 19 NYCRR 600.4(a) Page 23 of 93

proposed action on such policies.6 7 The SPDES permit renewals that are the subject of this DEIS will not result in any new effects on coastal zone policies. Coastal zone consistency forms are contained in DEIS Appendix IV-5. State law also requires that state agencies provide timely notice to local governments whenever an identified action will occur within an area covered by an approved local waterfront revitalization program (LWRP). The NYS Secretary of State is required to confer with state agencies and local governments when notified by a local government that a proposed state agency action may conflict with the policies and purposes of its approved LWRP, and may modify the proposed action to be consistent with the local plan. 6 8 None of these facilities is in an LWRP area. The consistency provisions of the New York State Coastal Management Program enable the Department to consider the full range of coastal policies prior to undertaking and approving a specific action. Hudson River Estuary Management Program In 1987, ECL §11-0306 was amended in order to establish a Hudson River estuarine district including "the tidal waters of the Hudson River, including the tidal waters of its tributaries and wetlands from the federal lock and dam at Troy to the Verrazano-Narrows." 69 This section also directed the Department to establish a Hudson River estuary management program "in order to protect, preserve and, where possible, restore and enhance the Hudson River estuarine district." 70 The district was also to consider the remainder of the Hudson River, New York Bight, and the waters around Long Island, as they impact the Hudson River estuary. A Hudson River estuary management advisory committee, consisting of representatives of commercial fishing, sportsmen, research, conservation, and recreation, as well as a Hudson River estuary coordinator, was created within the Department to manage the Hudson River estuary management program and assist in the development and implementation of the program.' A Hudson River estuarine sanctuary was also established "for the purpose of protecting areas of special ecological significance within the Hudson River estuarine district and associated shorelands ... ,,.72 The sanctuary also serves as a "long-term estuarine field laboratory for research and education concerning the Hudson River ecosystem." 67 6 NYCRR 617.14(d)(10) 68 Executive Law 915-a. 69 ECL §11-0306(1). 70 ECL §11-0306(2). 7" ECL §11-0306(4). 72 ECL §11-0306(5) Page 24 of 93

The Department and the advisory committee were directed to develop a continuing estuary management program "for the preservation, protection, restoration and enhancement of the Hudson River estuarine district and associated shorelands including but not limited to its natural resources, its fish and wildlife and the habitats within it." 73 The strategy was required to include, among other things, the following:

e. Evaluation of the impact of the uses of water on the Hudson River estuarine district including present and future demands for water and their impact on the balance of fresh and salt water in the estuary.

f. Identification of areas of potential ecological significance which may require rehabilitation.

g. A status report on the levels of toxicants in and their effects on important estuarine indicator species and for species that have potential or existing recreational or commercial value.

h. Identification of the anthropogenic activities and the conservation and management problems that pose an existing or potential threat to the resources and the functioning of the estuary.74 In enacting ECL §11-0306, the Legislature made the following findings and declarations:

The legislature further finds that the Hudson River estuary is of statewide and national importance as a habitat for marine, anadromous, catadromous, riverine and freshwater fish species and that it is the only major estuary on the east coast to still retain strong populations of its historical spawning stocks. Such species are of vital importance to the ecology and the economy of the state and to the recreational and commercial needs of the people of the New York state and neighboring states. A lack of sufficient and reliable research and documentation has resulted in recurring disputes on the movements, life cycles and habitats of these species. The legislature further finds that the Hudson River estuary possesses a fishery of outstanding commercial and recreational value, and the economic potential of the Hudson river estuary's fishery is at present underdeveloped. Improper management and use of the Hudson River estuary will deprive present and future generations of the benefit and enjoyment of this valuable resource. The legislature further finds that the protection of estuarine species throughout their life history; the protection of their spawning habitat, nursery habitat, wintering habitat and feeding and foraging habitat; and the protection, enhancement and restoration of the state's natural resources upon which these species and their habitat depend requires a specific program for the proper management of the Hudson River estuary. 73 ECL §11-0306(6). 74 See ECL §11-0306(6)(e)-(h). Page 25 of 93

It is hereby declared to be the policy of the state to preserve, protect and, where possible, restore and enhance the natural resources, the species, the habitat and the commercial and recreational values of the Hudson River estuary. Hudson River Valley Greenway Program Article 44 of the ECL was amended in 1991 to establish a Hudson River Valley Greenway Communities Council (Greenway Council) to assist Hudson River Valley comrmunities in the 10 counties of Westchester, Putnam, Dutchess, Columbia, Rennselaer, Albany, Green, Ulster, Orange, and Rockland in their plans for development. Article 44 was enacted as companion legislation to the Hudson River estuary management program discussed earlier.75 The statute authorizes the Greenway Council to provide and support cooperative planning to establish a voluntary regional compact among Hudson Valley localities to protect the valley's natural and cultural resources and promote regional planning. The ECL also provides that, upon compact effectiveness, state agency actions for which an EIS is being prepared under SEQR, including Department actions, must be assessed in light of the Greenway compact and applicable rules and regulations, and that the Greenway Council should review and comment in writing on the DEIS.76 As of early 2003, six counties and several localities were actively engaged in Greenway Compact planning and programs.7 7 Endangered Species Act Past operations at the Roseton Units 1 & 2, Bowline Units 1 & 2 and Indian Points Units 2 & 3 have occasionally resulted in the impingement of shortnose sturgeon on the facilities' traveling screens. Shortnose sturgeon are currently listed as endangered under the federal Endangered Species Act.78 In previous permit proceedings, the generators supplied the NMFS with all data on shortnose sturgeon that were collected in biological sampling programs. In testimony to the EPA in 1979, NMFS concluded in a Biological Opinion made pursuant to Section 7 of the Endangered Species Act that the once-through cooling system of the power plants did not pose a threat to the shortnose sturgeon population in the Hudson River. The generators are currently in the process of obtaining updated Incidental Take Permits from NMFS, 7' ECL §11-0306 76 ECL §44-0115(3). 77 Hudson River Valley Greenway Communities Council website, http://www. hudsongreenway.state. ny.us/commcoun/co-nmcoun.htm 78 Endangered Species Act of 1973, 16 U.S.C.A. §§ 1531 - 1544. Page 26 of 93

The New York State Energy Plan The NY State Energy Plan (SEP) is published every four years pursuant to § 6-104 of the State Energy Law (effective until January 1, 2003). The SEP was last published in 2002. § 6-102 of the State Energy Law creates the State Energy Planning Board. Among other things, the State Energy Law requires that the State Energy Planning Board include in the SEP twenty-year forecasts of the demand for electricity and energy supply requirements needed to supply that energy demand; an assessment of the ability of existing energy supply sources and transmission systems to satisfy such energy requirements; and identification and analysis of costs, risks, benefits and uncertainties of energy supply source alternatives for satisfying energy supply requirements which are not reasonably certain to be met by existing energy supply sources. The SEP is intended to be a reflection of the State's policies for promoting and adopting "flexible, yet stringent, environmental policies that balance the need for more energy with the need for improved public health and safety."' Among its major policy strategies and recommendations, it includes supporting "the continued safe operation of nuclear, coal, natural gas, oil, and hydroelectric 2 generation as part of a diverse portfolio of electricity generation resources". The SEP does not take into account the specific need to renew the Roseton, Bowline or Indian Point SPDES permits or the need to complete this EIS. However, the SEP does observe that mortalities to aquatic organisms associated with impingement and entrainment from the operation of CWIS and thermal discharges from older electricity generation facilities are negative environmental impacts for which minimization should be provided. 3 The SEP finds that, since the 1998 SEP was released, the State has made significant gains in reducing the environmental impacts associated with energy generation and consumption. It also finds that the impacts of energy generation on the State's aquatic resources are analyzed and addressed through existing regulatory programs. 4 The SEP will inform the Department's assessment of the impacts to and general alternatives for mitigation of adverse environmental impacts from the Roseton, Bowline and Indian Point generation facilities. NYS Environmental Quality Review Act (SEQR) SEQR requires that NYS agencies and local governments consider the potential adverse environmental impacts of decisions they make, including approval of applications from regulated entities.5 SEQR provided the Department's authority for 79 2002 SEP, p. S-1. Bo 2002 SEP, p. S-4. si 2002 SEP, p. 2-56. 82 2002 SEP, p. 2-58. 83 ECL Article 8 Page 27 of 93

requiring an EIS on the proposed renewal of the facilities' SPDES permits. Before issuing a final decision on each of the applications, the Department will be required to make findings based on this FEIS concluding whether, among other tests, the selected alternative(s) will minimize or avoid adverse environmental impacts, "... to the maximum extent practicable .. Page 28 of 93

MITIGATION AND ALTERNATIVES Available Mitigation Technologies Based on information in the 1999 DEIS, including DEIS Appendices VII and VIII, and on information obtained and analyses conducted since the DEIS was prepared, the Department believes that a range of available technologies exist to minimize aquatic resource mortality from the cooling water intake structures (CWIS) at the Indian Point, Roseton, and Bowline Point generating stations. This discussion will focus on conclusions relating to potential applicability to the HRSA facilities of a range of technology and management systems to reduce impacts on aquatic organisms from their CWIS operations. The "Response to Comments" section of this FEIS contains more detailed descriptions, background and updates on several of the technologies, and several supporting reports are attached in Appendix F- V. At present, the existing cooling water system at each of the HRSA generating stations is a "once-through" system, that is, Hudson River water is taken into the cooling system, circulated past the condenser coils to absorb waste heat from operation of the generation equipment, and discharged back to the Hudson River at a higher temperature than at the intake. In the process, some larger aquatic organisms are impinged on intake screens and many more are entrained within the circulating cooling water. Under the HRSA and Consent Orders, and currently by concurrence of the generators, Indian Point has achieved some reductions in intake volumes through the use of variable flow pumps while Roseton cycles pumps on and off to reduce water volumes used. Additionally, Indian Point has installed Fletcher-modified Ristroph traveling screens to help reduce impingement mortality at those facilities, and Bowline Point uses a seasonally-deployed fine mesh barrier net to reduce both impingement and entrainment mortality.8 4 While these represent some level of improvement compared to operations with no mitigation or protection, there are still significant unmitigated mortalities from entrainment and impingement at all three of the HRSA facilities. In addition to proposing a "Fish Protection Point" (FPP) management system as the generators' preferred alternative, 85 the DEIS presented information on a wide range of other technologies to reduce water intake volumes, prevent impingement or entrainment, or reduce thermal discharges, and also discussed a range of management options which might achieve one or more of the same goals.86 Those alternatives described by the generators included:

• outages, that is, reduction of water demand by ceasing generation at specified plants during specified time periods; 84 DEIS § VIII; Radle, E. W. and M. J. Calaban, 2003. Implementation of CWA 316(b) in New York. Proceedings (in press), A Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms. Washington, D. C., May 2003.

8s DEIS § VII. 86 DEIS § VIII. Page 29 of 93

" technology to reduce water demand, including dry, wet, and wet/dry (a/k/a "hybrid") cooling towers; " minimizing flow rates with variable speed pumps or modified pumping schedules; " barrier systems to minimize numbers of aquatic organisms impinged or entrained, including Ristroph traveling screens, fine-mesh screens, cylindrical wedge-wire screens, barrier nets, and fine-mesh barrier systems;

• behavioral deterrent systems designed to "steer" one or more classes of aquatic organisms away from CWIS, including acoustic systems, electrical barriers, air bubble curtains, several light systems, water jet curtains, and hanging chains;
• district heating/cooling, that is, exporting waste steam to a nearby industrial or institutional user, which in effect makes the receiving steam circulation system function as a large heat diffuser and thereby reduces the need for cooling water intake from and discharge to a water body like the Hudson;

" replacement of power provided by the HRSA plants with power from other sources, which would essentially mean exporting impacts by importing power;

• a so-called "multiple choice" alternative which would have required a commitment to not extend the Nuclear Regulatory Commission (NRC) Indian Point licenses; to operate the existing Bowline Point and Roseton plants until 2015 and then repower those stations with closed-cycle cooling; and provide 32 weeks of outages annually, until the NRC licenses expire for Indian Point and until 2015 for the other two plants;
• enhancements provided elsewhere than the HRSA plants, such as fish stocking and habitat improvement; and
• dismissal of a "no action" alternative, as the Department must by law take one of only 3 actions on SPDES renewal applications - approve, approve with conditions, or deny.

Alternatives Assessment Generally speaking, the most effective aquatic resource protection can be achieved by greatly reducing actual water usage, particularly during seasons of peak abundance of entrainable life stages." Complete retrofit of the HRSA plants to closed-cycle ("dry") cooling systems would result in an approximately 9 50/%water demand reduction and so must be given serious consideration for feasibility at each of the HRSA stations. Despite all of the benefits, however, closed-cycle systems do not come without impacts, and those potential impacts must also be weighed for each site. The success of closed-cycle cooling in other NYS deployments causes this technology to be given a relatively high level of consideration among available technologies, while not excluding other proposals. 87 In the Matter of an Application for a State Pollutant Discharge Elimination System (SPDES) Permit by Athens Generating Company, LP, Commissioner's Interim Decision, June 2, 2000, pp. 11 - 17 (Athens Interim Decision). See also Wantuck, R. L., 2003. Resource Agency Views of Technology Employed to Prevent Fish Mortality at Cooling Water Intakes. Proceedings (in press), A Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms. Washington, D. C., May 2003. Page 30 of 93

Among the potential impacts of closed-cycle cooling are so-called "energy penalties" associated with operation of cooling towers, that is, losses of generation efficiency under certain operating and climatic conditions plus the energy required to run component systems like fans. In addition, there are certain expenses associated with installing closed-cycle cooling. 88 Actual costs tend to vary widely depending on individual site characteristics combined with plant and tower configurations, so potential costs to install cooling towers can only be estimated based on a specific design proposal for an individual site. 89 Several classes of cooling tower system designs exist, each of which can substantially reduce water demand but also have associated "energy penalties" and other potential impacts of specific systems which must be evaluated based on individual proposals for particular sites. Dry, or closed cycle cooling systems rely on fans and air cooling with recovery of condensate for recirculation. "Wet" cooling towers use evaporative cooling, and "hybrid" or "wet/dry" towers have cooling cells with both evaporative and dry components. 9" Evaporative systems tend to produce condensate "plumes" which can be visible for considerable distances in some climatic conditions. Frequency of plume visibility and relative water losses can vary substantially depending on the operating parameters of a given system. Furthermore, evaporated water is permanently lost to the source water body; in the Hudson River system, there is evidence indicating that such losses could be sufficiently significant to affect salt levels. Thus, were a wet or hybrid tower to be proposed for any of the HRSA facilities, the potential impacts of evaporative losses, plumes, and energy losses would require careful evaluation based on a specific design proposal for that site. 9' Finally, modern cooling tower systems, whether dry, hybrid or wet, require a sufficient amount of land to support a series or array of cooling "cells". Again, potential impacts would be site and design specific but include possible visibility from sensitive receptors as well as potential impacts on sensitive land resources. The mid-to-lower Hudson Valley has a number of sensitive visual receptors as identified in the Visual Impact Assessment Policy developed by the Department's Division of Environmental Permits, but the ability to more precisely evaluate potential visual impacts would depend on knowing precise height, configuration and site placement o~f any proposed tower system.2 Similarly, prediction and evaluation of potential 88 Grogan, D. B. & Assoc., Inc. 2000. Hudson River Power Plants, Cooling Water System Design Assessment. Technical Report prepared for ESSA Technologies, Ltd., Richmond Hill, Ontario, Canada; included in Appendix F-IV of this FEIS. 89 Maulbetsch, J. and K. Zammit, 2003. Cooling System Retrofit Costs. Proceedings (in press), A Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms. Washington, D. C., May 2003. 90 Grogan, 2000; Maulbetsch, 2003; see also DEIS Section VIII and appendices for basic descriptions and diagrams of cooling tower systems. 91 Grogan, 2000. 92 Department Program Policy DEP 00-2, Assessing and Mitigating Visual Impacts. July 31, 2000. www.dec.state.ny.us/website/dcs/policy/visual2000.pdf Page 31 of 93

land resource impacts would require that proposed site placement and size of the tower array, at least, be known. A modification of generating station design that can be incorporated with new construction or when an existing electric generating plant is "repowered", that is, has its core combustion and generating systems replaced, is combined-cycle generation. In the most basic terms, a combined-cycle plant is designed to use some of the waste heat from the initial combustion/generation process to power a secondary turbine. Use of combined-cycle technology greatly reduces the amount of waste heat which must be managed, thereby greatly reducing the total demand for cooling and, thus, the size of the necessary cooling system. Other approaches can also reduce water demand, usage or flow rates, which can then result in reductions in entrainment, impingement, or both. Permanent, structural measures, such as modified intake structures to reduce intake velocities, are one example of this approach. In addition, management systems and seasonal adjustments like the outage schedule employed for the HRSA plants can reduce water withdrawn during critical seasons. Monitoring and verifying such systems can require substantial recordkeeping by generators and agencies. There are also potential conflicts resulting from outage requirements in a competitive market where actual generating schedules are determined by the New York Independent System Operator (NYISO). On the other hand, such systems may be more rapidly implemented as they do not typically require major new infrastructure construction. Structural protection can be added at intakes to reduce entrainment, impingement, or both. Traveling screens, barrier nets, "aquatic filter barriers" (AFB) like the Gunderboom Marine Life Exclusion System M T (MLES" M ), and wedgewire intake structures can all protect some or many life-stages from being trapped against or entering into cooling water intake systems.9 3 Traveling screens are used at many intakes to reduce the load of small solids entering and potentially damaging the cooling system; in some cases, like at Indian Point, those screen systems have been modified to incorporate "fish return" components.94 These screens are most effective at reducing impingement of larger aquatic organisms but do very little to reduce entrainment. Similarly, barrier nets are typically relatively coarse mesh (3 - 5 mm opening, or wider) and are more effective in reducing impingement than entrainment. Barrier nets have been used in a range of fresh- and saltwater systems in the United States. 9 5 A fine-mesh barrier net (3 mm opening) has been seasonally deployed at Bowline Point under the HRSA and subsequent Consent Orders. 93 See also Responses to Comments, following, plus individual technology assessments in App. xx - yy of this FEIS. 94 Radle and Calaban, 2003. 9' Taft, E., T. Cook, J. Black, and N. Olken, 2003. Fish Protection Technologies for Existing Cooling Water Intake Structures and Their Costs. Proceedings (in press), A Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms. Washington, D. C., May 2003. Page 32 of 93

AFB's are a variant on barrier nets. Instead of relatively coarse openings, AFB's have micropores which allow water passage but block most floating or suspended organisms and objects. These micropores are sufficiently fine to act as a barrier to many fish eggs and larvae as well as other floating and suspended aquatic organisms. Depending on a facility's intake configuration, an AFB can be installed as an in-water, surface-to-bottom "curtain" surrounding an open-water intake, or as panels running along a shoreline, parallel to river flow, to screen a shoreline intake. The Department has monitored a series of deployments of a "curtain" installation of the Gunderboom MLES TM at the Lovett generating station, also on the Hudson River, on the opposite shore and slightly downstream from Indian Point (Figure 2, following this text section). In those deployments, the MLES TM showed effectiveness approaching that of closed cycle cooling for reducing both entrainment and impingement.9 6 Other researchers have identified "fouling" (clogging openings with debris or organisms) as a concern with both barrier nets and AFB's at other locations,9 7 and shoreline or channel bottom modifications can be necessary for deployment. Thus, again, site- and design-specific evaluations and impact assessments must be made of any proposed installation of AFB or barrier net system, and effectiveness monitoring should be required for some time after installation. Wedge-wire intake screens have also been shown to be very effective in reducing impingement but variably successful in reducing entrainment. 98 Wedge-wire screens essentially provide a filtering hood over an intake that both physically blocks many organisms from entering the intake and reduces intake flow rates, by essentially "spreading" the intake's draw over a relatively large surface area. How effective a specific wedge-wire screen installation will be in reducing entrainment depends on the "slot" size of the screen and on the size distribution of potentially entrainable aquatic organisms in that water body. Two millimeter (mm) slots, or openings between metal parts to provide water passage, will generally block organisms 15 mm and larger; smaller slot openings will protect smaller organisms but also reduce the flow rate through a given area of screen. Where water volume and flow rate requirements of a generating facility plus the local populations of entrainable organisms match the capabilities of the wedge-wire screen system, this can provide an effective intake protection system, however, determining that match will require detailed, site-specific analyses. Behavioral and deterrent systems like acoustic deterrents have also shown promise for reducing mortality of some species or classes of aquatic organisms in specific 96 See reports in Department application file for the 2003 Lovett SPDES renewal, Department # 3-3928-00010/00002 and 3-3928-00010/00045 97 McLean, R. 2003. State of Maryland Perspectives on Cooling Water Intake Technologies to Protect Aquatic Organisms; and Henderson, P., R. Seaby and R. Somes. 2003. Filter Curtain Materials, Entrainment, Biofouling and Permeability. Both in Proceedings (in press), A Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms. Washington, D. C., May 2003. 98 Taft, E., T. Cook, J. Black, and N. Olken. 2003. Fish Protection Technologies for Existing Cooling Water Intakes and Their Costs. Proceedings (in press), A Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms. Washington, D. C., May 2003. Page 33 of 93

situations. Most notably, sonic deterrent systems have been shown to be effective in protecting adults of some herring species from impingement at intakes in Lake Ontario, on the English Channel, and in Belgium. 99 Key design criteria of these deployed systems differ widely, including operating pitches, timing, and speaker placement. Because there are still wide differences in designs and an apparently narrow range of species susceptible to sonic deterrence, application at any of the HRSA plants would require site and resource assessments to determine likelihood of success as well as followup studies to monitor effectiveness. Other deterrent technologies do not have sufficient performance records to be considered available at this time. The most promising BTA approach for the HRSA plants at this time appears to be combinations of technologies, or technologies plus management systems, deployed in such a manner as to provide increasingly effective aquatic resource protection. This conclusion is consistent with that of other researchers working with cooling water intakes at existing power stations.'0 0 Significantly for NYS, this approach of combined technologies would also be consistent with the BTA determinations recently reached for several new or repowered electric generating stations on the Hudson River and estuary system, which have generating capacities similar to units at the HRSA facilities: 0 Athens Generating Station (Athens), between Albany and Kingston;°10 02

• Bethlehem Energy Center (Bethlehem), slightly south of Albany;1 3

0 Bowline 3, adjoining Bowline Point 1 and 2, West Haverstraw;'1 10 4 0 Lovett Electric Generating Station, Stony Point;

• Astoria Generating Company (Reliant/Astoria), Queens, New York City (NYC);'(os 99 Radle et al, 2003; Ross, Q. E., D. J. Dunning, J. K. Menezes, M. J. Kenna, Jr. and G. Tiller. 1996. Reducing Impingement of Alewives with High-Frequency Sound at a Power Plant Intake on Lake Ontario. North American Journal of Fisheries Management, 16:548-559; Maes, J., A. Turnpenny, D. Lambert, J. Nedwell, A.

Parmentier and F. Ollevier. 2002. The Impact of Cooling Water Abstraction On Fish At The Electrobel Power Plant Doel (Belgium) After Installation Of A Fish Guidance Sound System. Journeew D'etude Du Cebedeau, Nov/Dec 2002. Pp. 75-78. 100 Taft et al, 2003; Maulbetsch et al, 2003. 101 Athens Interim Decision. 102 In the Matter of The Applications for Clean Air Act Title IV and SPDES permits by PSEG Power New York, Inc. (Bethlehem Energy Center), Interim Decision, January 31, 2002.

           '(3 In the Matter of the Application for a SPDES permit and Air Pollution Control permits by Mirant Bowline, LLC. (Bowline 3 Decision), Decision, March 19, 2002.

104 Lovett Electric Generating Station, SPDES Permit (and supporting Fact Sheets), DEC # 3-3928-00010/0002; NY-0005711; February 6, 2003. 105 In the Matter of the Application of Astoria Generating Company, L.P. for a Certificate to Construct and Operate a 1,816 MW Electric Generating Plant pursuant Page 34 of 93

• Astoria Energy (SCS/Astoria), Queens, NYC;' 0 6 and 07

°      New York Power Authority (NYPA/Astoria), also in Queens, NYC.1 Locations of these facilities are shown on Figures 2 and 3, following this section.

For the Athens project, a new plant employing combined-cycle technology, potential impacts on aquatic resources were found to be a very compelling concern, and a dry cooling system was determined to be BTA. At Bethlehem, a repowering incorporating combined-cycle technology, third parties voiced strong concerns over potential visibility of the taller structures required for a full dry cooling system as opposed to wet or hybrid cooling tower systems, but significant numbers of species and life stages susceptible to both entrainment and impingement were present at the site. Thus, for that project, a plan was developed and approved to construct hybrid cooling towers, install a wedgewire structure over the intake, and seasonally deploy an MLES to further screen the intake during peak periods of potential M T entrainment. The MLES TM installation at Bethlehem will be flat panels generally paralleling the shoreline. Bowline 3, a new combined-cycle plant, will use a combination of technologies similar to that at Bethlehem. In addition, Bowline 3's sponsors propose to use discharge water from Bowline 1 and 2, when available, instead of Hudson River water for its cooling water source. This management strategy could further reduce the amount of fresh river water required for the new generating plant. At the Reliant/Astoria facility, a repowering project on the Queens side of the East River, combined-cycle generation with hybrid towers plus intake protection will be provided; the towers will use a reverse osmosis treatment system to minimize salt drift impacts. The SCS/Astoria and NYPA/Astoria projects, both new plants employing combined-cycle generation, will use dry cooling. In each of these recent decisions, consistent with established law, the aquatic and other natural resources present at and site-specific constraints of each project factored into the individual BTA determination. Each BTA decision must also be found to maximize fish protection while minimizing or avoiding other impacts "... to the maximum extent practicable ... " to satisfy SEQR as well as CWA §316(b). These decisions reiterate that each SPDES permit application involving a CWIS will present an opportunity to make an independent BTA decision.'0 8 By their very nature, BTA decisions are application-specific, based on site-specific characteristics rather than to Article X of the Public Service Law (Reliant/Astoria Decision), Recommended Decision, April 3, 2003. 106 In the Matter of an Application by Astoria Energy LLC for a Certificate to Construct and Operate a 1000 MW Electric Generating Plant pursuant to Article X of the Public Service Law (SCS/Astoria Decision), Order and Opinion Granting Certificate, November 21, 2001. 10o In the Matter of an Application by the New York Power Authority for a Certificate to Construct and Operate a 500 MW Electric Generating Plant pursuant to Article X of the Public Service Law (NYPA/Astoria Decision), Recommended Decision, December 17, 2001. 108 Athens Interim Decision, p.12. Page 35 of 93

pre-established quantitative goals applicable to applications generally. This appropriately addresses the unique physical and regulatory aspects of each site, including issues that are land-based and water body-specific, as well as its particular technological limitations or parameters. Fig.3, facing page. Locations of Selected New and Existing Power Plants on the Lower Hudson Estuary, Hudson River, NY.° 0 9

          '09 Scale reduced from original by about 55%.

Page 36 of 93 Back to FEIS Sections

Selected Power Plants on the Lower Hudson Estuary Scale 1:250000 NEW Y-I Page 37 of 93

Fig.3. General Location Map, Athens Generating Station and Bethlehem Energy Center, Hudson River, NY11 0 Selected Power Plants ( M don the "' 7 Mid Hudson Estuary

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         ! Scale         reduced fro    orgia        about'0%.                       ."..

Page 38 of 93

PUBLIC COMMENT

SUMMARY

Table 3 (following pages) presents a summary of comments received on the 1999 DEIS, both in writing and orally, at the June 8, 2000, legislative hearing. Comments addressing similar themes are grouped together. The final page of this summary contains a list of all commentors with a key to name abbreviations. Full texts of all written comments plus the hearing transcripts are attached in Appendix F-I. Table 3. Summary of Public Comments Received on DEIS"' 1 TOPIC PUBLIC __ COMMENTS FISH POPULATIONS

1. "Cropping" (that, is, EA: continued operation of plants at current levels consumption of some of entrainment and impingement are inconsistent portion of one or more with prior NYS statements that power plants should populations) by power not "crop" fish stocks plants is not a legitimate NMFS: alternatives discussion weakened by use of NYS's fisheries presumption that "cropping" aquatic resources by and other aquatic power plants is acceptable resources. Riverkeeper: DEIS provides no basis for concluding that mitigation measures should be accepted instead of closed-cycle cooling - technology and policy have advanced to point where [continued] fish mortality at power plants is an unnecessary anachronism

2. Many species in the EA: some fish stocks actually showing declines -

Hudson River system are utilities' own data shows substantially reduced year actually declining. While classes and abundance for several species the striped bass (SB) PISCES: DEIS seriously underestimates potential population is up, that impacts on bay anchovy, especially early in season increase may be the Riverkeeper: DEIS assessment of health of result of other populations and estuary "overly sanguine" - system management decisions actually far from equilibrium with several species in and activities. Historic decline; shad and tomcod deserve "more sober baseline or trend data assessment" of current low levels not substantially Scenic: plants have killed billions of fish over last 20 discussed. years; evidence of long-term declines ill A list of all commentors and abbreviations is included at the end of this table. Page 39 of 93

TOPIC PUBLIC II COMMENTS

3. Several commentors DEC (@ hearing): accepting DEIS for comment question one or more of doesn't mean agency agrees with it the assumptions used in EA: concur with Riverkeeper's conclusion that one or more of the assumptions for models are flawed so underestimate population models; in impacts of plants on Hudson River fish; because particular, density- analyses do not include pre-power plant conditions, dependence is unproven, no basis for saying plants have not changed conditions PISCES: large changes in fish species abundance over time plus small decrease in total species richness/diversity suggest that Hudson estuary far from equilibrium; density-dependence unproven, and in SB probably causes serious understatement of importance of numbers of fish killed; by assuming density-dependence and not considering other factors, models ignore disproportionate impacts of reductions in strong year classes '

Riverkeeper: model does not accurately represent impacts of entrainment so should not be basis for decisions; does not account for year-to-year variability in year class strength; models force-fit some data, with biased or unsupportable conclusions

4. Climate, disease, and ASA: 20+ years of studies and data are represented the changing ecology of in the DEIS the Hudson River system DEC (@ hearing): accepting DEIS for comment are not considered in the doesn't mean agency agrees with it population models Jacobs - M: cites Croton Landfill cleanup NMFS: SB analyses neglect other factors in assessing current abundance - need to take a wider view Riverkeeper: their experts conclude that the DEIS

                          'contains a naive ecological analysis which completely ignores the role of climate and disease in determining population'

5. Thermal analyses PISCES: use of 1981 thermal data for far-field need to be updated to model may seriously underestimate thermal impacts reflect recent, more Riverkeeper: thermal model based on older data so extreme conditions don't reflect extreme summer conditions of later years; DEIS does not address general warming in Hudson estuary Page 40 of 93

TOPIC PUBLIC _ COMMENTS FISH PROTECTION POINTS

6. Fish protection points ASA: existing technologies at all 3 plants plus (FPP) would provide proposed operating schemes would achieve future operational flexibility fish protection levels similar to those required in last but even less protection 20 years than conditions in the DEC (@ hearing): accepting DEIS for comment Hudson River Settlement doesn't mean agency agrees with it Agreement (HRSA) EA: HRSA levels not sufficient level of protection; FPP likely to lead to larger fish kills so is not sound approach NMFS: FPP are comparable to HRSA standards, but those standards were only intended to be interim and should not now be considered as meeting objectives of the Clean Water Act (CWA); should be looking to "... build[s] on the prior successes rather than simply taking advantage of them" NRDC: DEIS scheme would weaken fish protection in Hudson PISCES: FPP appear designed more to benefit power plants than fish and may result in increased entrainment and impingement mortality; "banking" between years could lead to excessive population impact if critical year classes hit by disproportionate entrainment Riverkeeper: their experts conclude that FPP system is really just a way to trade credits and has "serious weakness and seems designed to aid power plant profitability rather than to protect fish"; could actually result in greater harm being inflicted on fish populations, for example, trading credits among years could lead to devastating impacts on strong year classes; represents an extreme initial negotiating position Scenic: concur with NRDC & Riverkeeper; continuation of Settlement Agreement conditions not acceptable objective; DEIS scheme would weaken fish protection in Hudson Page 41 of 93

TOPIC PUBLIC [I COMMENTS MITIGATION

7. DEIS includes little PISCES: insufficient information on acoustic information on acoustic deterrents deterrence and barrier systems.

8. DEIS significantly NRDC: have changed opposition to cooling towers overstates costs and with changes in technology since the 1970's energy impacts of closed NYRU: cooling tower analyses should include more cycle cooling analysis of their potential environmental impacts Riverkeeper: cooling technology changes have eliminated prior objections to towers Page 42 of 93

TOPIC PUBLIC I COMMENTS

9. DEIS alternatives and ASA: once-through with protection measures best proposed action do not balance of all interests present a fair picture of CHV: tragedy to allow continued killing of billions of available alternatives fish by antiquated cooling technologies; require plants to be brought up to modern standards COE: look at boom in Tompkins Cove DEC (@ hearing): accepting DEIS for comment doesn't mean agency agrees with it; draft permits and supporting documents will consider multiple alternative technologies Downs: plants should get on schedule to either convert to dry cooling or close NMFS: alternatives discussion weakened by presumption that "cropping" aquatic resources by power plants is acceptable; accepting these proposals would not meet CWA obligation to protect public trust resources NYRU: Gunderboom should be included in DEIS; incorporate results of river flow pattern research into mitigation alternatives; restoration projects must be regional in scope and on same scale as impact PISCES: insufficient treatment of barriers Riverkeeper: their experts conclude that the DEIS "constructs an argument in favor of the lack of impact ... "; DEIS provides no basis for concluding that mitigation measures should be accepted instead of closed-cycle cooling - technology and policy have advanced to point where [continued] fish mortality at power plants is an unnecessary anachronism Scenic: DEIS does not consider pre-plant conditions; permits should require closed-cycle or 32-week outages Page 43 of 93

TOPIC PUBLIC _ COMMENTS OTHER TOPICS

10. The DEIS needs to Downs: if permits create easier standards for older consider effects of New plants, competitive market will not shift generation York's recent conversion to newer, less-impacting plants to a competitive energy EA: conversion to market system means there will market, take the State be pressures to run as much as possible so Energy Plan into imperative that renewal permits include conditions account, or impose "highly protective of Hudson River fish ... "; in parity among facilities, deregulated market, there would be increased incentive for these plants to run in preference to newer, more protective units unless these plants are compelled to retrofit to closed-cycle or shut down Gordon/Kennedy/Lee: competitive market increases urgency to impose environmental controls on older facilities NRDC: should be parity of permit conditions between these "old" and newer plants on Hudson; look to Athens decision for model; need to now move rapidly to final decision NYRU: outages or reduced operations can be "alternatives to reduce cooling water use", but deregulated market may make harder to control or achieve so should factor that uncertainty into permit terms or conditions Riverkeeper: need to follow Athens decision model and truly minimize impacts Page 44 of 93

TOPIC PUBLIC 1 COMMENTS C

11. Radiation Baiman: history of radiation discharges causes discharges are not multiple concerns (cites NYS Health Department discussed in the DEIS, reports); should shut down all the nuclear plants but should be. EA: submitted NYS Health Department radiation survey numbers Elie: [DEIS] should consider radiation Gabrielle: wants more information on radiation impacts especially on reservoirs; do not renew Indian Point permits Jacobs - B: monitoring of leak from Indian Point 1 should be included in this permit Jacobs-M: EIS needs to consider radioactive discharges, including results of monitoring reports from NYS Department of Health which show increased levels in summer; renewals should prohibit all pollutant discharges Likes: concerned that any radioactive release is permissible; prefer that plants be closed; actual discharge should be monitored for radioactivity Schepart: should consider reports by NYS DOH on radiation levels in Hudson - records show radiation discharges in excess of health limits; should include radiological limits in new permits Weinstein: look at radioactive discharges and chemicals used in piping system Page 45 of 93

TOPIC PUBLIC COMMENTS

12. Several commentors Carlin: downwind - close Indian Point expressed generalized Downs: ironic to be looking at continuation of these opposition to renewal withdrawals in face of Athens decision for one or more facilities Goodman: do not permit Indian Point Jacobs - S: evacuation plans appear inadequate; laws should be fully enforced Jordan: don't renew Indian Point - poorly maintained facilities should be shut down Mirabito: do not issue permits Moon: concerns with Indian Point plant safety (radiation leaks, old equipment); shut the plant down Nelson-Epstein: close Indian Point Riverkeeper: 10-year SPDES permit term as proposed in DEIS would be illegal; thermal discharges, at least at Indian Point, do not meet water quality standards so should not renew permit(s)

Scenic: power plant entrainment & impingement not a valid use of resources; 10-year permit would be illegal Smallev: move from unconscionably hazardous energy sources; shut plants down Wren: oppose nuclear power so don't renew Indian Point permit Page 46 of 93

List of Commentors Oral Comments Benas, Richard (DEC) for NYS Department of Environmental Conservation Clempner, Jean Downs, Roger with Susquehanna shad restoration project Elie, Marilyn of Westchester Citizens Awareness Network Gabrielle, Susan Hudson Riverkeeper (Riverkeeoer) by David Gordon, Esq. Jacobs, Barbara Jacobs, Mark of Westchester Greens and of WESTPAC (Westchester People's Action Coalition) Jacobs, Stanley Kennedy, Katherine for Natural Resources Defense Council (NRDC) Lee, Cara for Scenic Hudson (Scenic) Likes, Philip Moon, Dan Schepart, Margo of Westchester Citizens Awareness Network Smallev, Jillian [phonetic sp, from transcript] Weinstein, Lucille Young, John (ASA) for generators/utilities Written Comments Baiman, Sydney Carlin, Lynne Citizens for the Hudson Valley (CHV) by Dimitri Sevastopoulo Environmental Advocates (EA) by Kyle Rabin Gabrielle, Susan Goodman, Sidney J. Hudson Riverkeeper (Riverkeeper) by David Gordon, Esq. Jacobs, Mark of Westchester Greens and of WESTPAC (Westchester People's Action Coalition) Jordan, John of Catskill Alliance for Peace Likes, Philip Mirabito, Stephen National Marine Fisheries Service (NMFS), by Michael Ludwig Natural Resources Defense Council (NRDC) by Katherine Kennedy Nelson-Epstein, David New York Rivers United (NYRU) by Ivan Vamos PISCES Conservation Ltd (PISCES) by Peter Henderson, Ph.D., for Riverkeeper, Scenic Hudson, and Natural Resources Defense Council Scenic Hudson (Scenic) by Cara Lee Schepart, Margo U. S. Army Corps of Engineers (COE), by Richard L. Turner Wyler, Megan Page 47 of 93

Page 48 of 93 (This page intentionally left blank.) RESPONSES TO COMMENTS Consolidated responses follow to each of the comment themes identified in Table 3 (preceding). Each topical response is considered to reply to all of the comments identified within that theme group. Fish Populations - 1. "Cropping" (that, is, consumption of some portion of one or more populations) by power plants is not a legitimate use of NYS's fisheries and other aquatic resources. Some commentors have suggested that fish populations should not be "cropped" by power plants. In other words, they object to any argument that electric generating facilities be permitted to cause injury or death to any life stages of fish and other aquatic organisms, provided only that specified populations of adult fish of selected species be maintained. The Department agrees that fish should not be "cropped" by power plants. Instead, the Department asserts, and is supported through statute, regulation, policy and practice, that it is in the public interest to minimize the loss of fish and other aquatic resources at electricity generation facilities. The Department further asserts that significant impacts to aquatic resources are not an inevitable result of electric power generation. The mission of the Department is to provide for the best uses of the State's waters and of its fish and wildlife resources. These resources belong to the people of the State and are held in trust for the use and enjoyment of current and future generations of New Yorkers. The Department's obligations regarding fish and wildlife are described in ECL Articles 11 and 13; its obligations regarding the waters of the State are described in ECL Articles 15 and 17. (See also FEIS Regulatory Setting - Legislative Findings and Commissioner's Powers.) The State's fish and wildlife Fish and wildlife are the property of the State but numerous uses of fish and wildlife which result in their deaths are permitted. Recreational and commercial fishing, hunting, trapping, scientific collection, and relief from nuisance or damage are examples. In each instance, the permissible methods of take are defined explicitly in statute or regulation. Fishing, hunting, trapping and scientific collection are highly regulated. The species, age (or its surrogate, size) and sometimes even the sex of the animal to be taken are specified. The time of year is also determined for most species of game, through "open seasons." Generally, breeding seasons are avoided and the "crop" of fish or wildlife is made available to its human consumers when populations are highest or the values in flesh or fur are at their peaks. In order to ensure that populations are Page 49 of 93

not over-exploited, populations are monitored, either directly or indirectly. At a minimum, the goal of management for such harvested species is to ensure sustainable populations. Similar considerations apply when permitting the destruction of wildlife which pose a threat to human safety or property. Generally, the taking of such wildlife is permitted either as a last resort or where the magnitude of the take is believed to be insignificant to the species' population or its ecological function. That fish should not be wasted as a part of energy production was made clear by former Commissioner Jorling, in 1991 letters to the generators, in which he stated:

       "The inadvertent mortality of fish by utilities is not a legitimate use of fishery resources. Therefore, the Department will not allocate a portion of fishing mortality to utilities and will seek elimination if possible, and otherwise minimization, of mortality caused by utilities...".112 The State's waters The waters of New York, too, arethe property of the State. Numerous uses are recognized and permitted. New York's waters are used for human consumption, recreation, agriculture, industry, commerce, navigation, and as habitat for fish and wildlife. New York State laws and regulations recognize these uses and provide a regulatory framework which ensures that water quality is maintained at levels which can support particular uses. Generally, the "cleaner" waters are classified for those activities which require the highest water quality, such as for drinking. The goal of the regulatory program is to maintain or improve water quality to enable the designated "best usage.""'3 The waters      near the Hudson River plants have been classified as either Class A, B, C, SB, or SC.      Each of these classifications has "fishing" as at least one of the designated     best use(s). Each also includes the condition that, "... These waters shall be suitable   for fish propagation and survival ... ".

Historically, the water classification system recognized industrial cooling and process water as "best usages" for Class D water supplies. The listing of these activities as "best usages" was removed by amendments to the regulations prior to 1972. Currently, the least protective designation in NYS is Class D. In fresh surface waters, the best usage of even Class D waters is fishing and the waters must be"... suitable for fish survival ... 114 If a water cannot achieve the usages for which it has been designated, it is deemed to be impacted. Pursuant to § 305(b) of the CWA, the Department biennially publishes a report on the State's water quality which, among other things, describes 112 Copies of letters in Appendix F-V. 113 6 NYCRR Parts 800 - 941. 114 See 6 NYCRR § 701.9 Page 50 of 93

such impairments.1 5 The NYS Water Quality Report for 2002 lists the Hudson River downstream from the federal dam at Troy as being impacted by cooling water use by power plants. As discussed more thoroughly below and in several other responses, the effects of the use of Hudson River water for generating plant cooling include the loss each year of a substantial percentage of annual fish propagation. Under alternative density-dependent hypotheses, maximum sustainable yield of shad could double if entrainment mortality at all generation facilities was eliminated.1 6 Thus, current levels of impingement and entrainment impair and may preclude the best usage components of propagation and survival. The thermal effects of power plants on Atlantic tomcod and rainbow smelt also appear to preclude or impair fish survival." 7 Ecosystem values Numerous public agencies have formally recognized the especially significant values of the Hudson's fisheries. For example, the NMFS has designated the Hudson an Essential Fish Habitat, in recognition of the role it plays in maintaining 34 commercially important fish species. The National Oceanic and Atmospheric Administration has designated four sections, Piermont Marsh, Iona Island, Tivoli Bays and Stockport Flats, as a National Estuarine Research Reserve. NYS Department of State has designated 41 sections of the Hudson as significant tidal habitat, and the USFWS has recognized a number of regionally significant habitats along the River, including Papscanee Marsh, Vosburg Swamp and the Esopus Estuary. Impacts on the aquatic community Hudson River fish populations have been studied both intensively and extensively. Survival and mortality investigations have been conducted over long periods of time to measure the impacts, primarily mechanical and thermal, of the power plants on particular fish populations. Although the DEIS asserts that the generating facilities have caused no harm to the aquatic community, numerous findings suggest otherwise. Henderson and Seaby (2000) summarize the differing views:

       "The DEIS concludes that there is no evidence of community change that can be attributed to the power stations. 'While changes in the composition and abundance of this fish community have been observed, 115 CWA § 305(b); 33 U.S.C. § 1315.
           "16 Deriso, R., K. Hattala & A. Kahnle, 2000. Hudson River Shad Assessment and Equilibrium Calculations: Revision of the 1995 Report to include data through 1997. In: ESSA Technologies, Ltd. 2000. Review of the Draft Environmental Impact Statement for SPDES Permits for the Bowline Point 1 & 2, Indian Point 2 & 3, and Roseton 1 & 2 Steam Electric Generating Stations. Report to the Parties to the Application. Prepared by ESSA Technologies, Ltd., Richmond Hill, ON, for NYSDEC, Albany, N.Y. 31 pp. plus appendices.

117 See Atlantic Tomcod and Rainbow Smelt discussions under response 4 in this section of the FEIS. Page 51 of 93

all appear attributable to factors other than power plant operations.' (VI-36) Second, a key conclusion in the DEIS is that the Hudson ecosystem is healthy. For example, the DEIS states: 'The relatively large number of taxonomic groups collected in these surveys as post yolk-sac larvae demonstrates that the Estuary is a species rich environment and is consistent with the Hudson being [a] healthy ecosystem.' (V-159). The conclusion relies on no particular measure of ecological quality and probably represents a simplistic assumption that because there are many fish present it must still be in good health. This observation would be more c6nvincing if it considered how many species would be expected in the estuary in a completely natural state.

     "From these observations it is concluded that: 'the fish community in the system remains healthy and robust' ([1999 DEIS] Section VI page 36). All the observed changes are attributable to causes other than those linked to the operation of power plant[s] including, water chestnut growth, zebra mussel invasion, changes in commercial fishing, increases in salinity and improved water quality in New York harbour.
     "The available facts can be interpreted differently. The following account better reflects the available data.
     "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

[sic] range of 5-8% per annum. If these trends were to continue, they will quickly result in profound changes in the fish community.

     "Since the improvement in water quality in New York harbour [from sewage treatment plant completion], blue crab, Atlantic silversides and striped bass have increased in abundance. In the case of striped bass this is probably related to a decrease in fishing pressure as well as increased habitat for juveniles at the mouth of the estuary. The power stations can affect the fish populations by increasing mortality, principally via entrainment, so that the populations are no longer able to fully replace themselves. For the species which breed in the Hudson estuary and have young stages vulnerable to entrainment, the estimated power station mortality rate is sufficiently high to cause a significant reduction in adult numbers.
     "Because the tomcod is a short-lived fish which stays for its entire life within the Hudson estuary, is not commercially fished and suffers the highest level of entrainment mortality of any fish in the estuary, it is a key species to study for the detection of power station effects. The Page 52 of 93

population of this fish is in long-term decline and entrainment losses must be considered a probable contributory cause. This would not be the case if strong density-dependence were operating after the early juvenile stages. However, there is no compelling evidence in favor of density-dependence and good reasons to believe it is not operating. Not least of which is the rapid decline in abundance.

        "In conclusion, it is not possible to dismiss the influence of the power plants on the fish community, particularly when it is proposed to further increase fish mortality rates. The present community is far from equilibrium and undergoing considerable change. The DEIS's simple declaration [of] it as 'healthy' is a complacent over-generalization." 1"8 The aquatic resource mortality from power plants is not comparable to the "selective cropping" that occurs in a regulated fishing or hunting season. Under such regulation, only selected species are harvested, and the forage base remains intact or is improved because fewer individuals higher on the food chain are available to consume lower food chain organisms. Furthermore, fishing and hunting seasons are generally established during that part of the annual cycle which provides both maximum benefit to the users and ensures the sustainability of the population.

Mortality at these Hudson River power plants is not limited to a specific, benign season; it occurs throughout the annual cycle, whenever the plants operate their "once-through" pumps. Finally, although impingement and entrainment mortality is measured, it is typically measured only for several of the 140 species of fishes found in the Hudson. Information about the impact on the full suite of aquatic organisms is limited. Rather than "selective cropping", the impacts associated with power plants are more comparable to habitat degradation; the entire natural community is impacted. These "once-through cooling" power plants do not selectively harvest individual species. Rather, impingement and entrainment and warming of the water impact the entire community of organisms that inhabit the water column. For example, these impacts diminish a portion of the forage base for each species that consumes plankton (drifting organisms in the water column) or nekton (mobile organisms swimming through the water column) so there is less food available for the survivors. In an intact ecosystem, these organisms serve as compact packets of nutrients and energy, with each trophic (food chain) level serving to capture a diffuse resource and make it more concentrated. Ichthyoplankton (fish eggs, larvae and very small fish which drift in the water column) and small fish feed on a base of zooplankton (drifting animal life) and phytoplankton (drifting plant life). The loss of these small organisms in the natural community may be a factor that leads to 118 Henderson, P. A. and R. M. Seaby, 2000. Technical Comments on the Draft Environmental Impact Statement for the State Pollutant Discharge Elimination System Permit Renewal for Bowline Point 1 & 2, Indian Point 2 & 3, and Roseton 1 & 2 Steam Generating Stations. June 2000, Pisces Conservation Ltd. (PISCES report; included in App. F-I.) Page 53 of 93

harmful algal blooms.1 9 The small fish themselves serve as forage for the young of larger species, which serve as forage for larger individuals, and so on up the food chain, more correctly understood as a "trophic pyramid". Once-through cooling mortality "short-circuits" the trophic pyramid and compromises the health of the natural community. For example, while an individual bay anchovy might ordinarily serve as food for a juvenile striped bass or even for a common tern, entrainment and passage through a power plant's cooling system would render it useful only as food to lower trophic level organisms. It could no longer provide its other ecosystem functions of consuming phytoplankton, digesting and- concentrating it into its tissues, and ranging over a wide area, distributing other nutrients as manure. This is just a single example from a very complex natural system, where the same basic impact is multiplied millions of times over more than one hundred fish species. The direct reduction of the quantity of organisms within the water column by water intakes is known as draw-down. The draw-down of organisms can be understood from the work which HydroQual performed for one of the generators to quantify probabilities of entrainment or re-entrainment for passive particles such as plankton.1 20 This study produced multiple profiles of the velocities at various depths across multiple sections of the Hudson in the vicinity of the HRSA generating stations. The measurements were done continuously through time and gave an hourly, three-dimensional profile of water particle travel through time and space in the Hudson; both high flow and low flow conditions were considered. Figures 4 and 5 demonstrate the probability of any single egg or larva or other plankton organism being entrained within seven days of momentarily occupying a single location."2 ' The actual draw-down is likely even greater because the three HRSA generating plants (combined with other facilities in the same river reaches) act cumulatively on the entire aquatic community; many organisms live in this reach of the River for more than seven days; and any organisms coming from upstream, such as tomcod, would also be subject to the draw-down from the Danskammer and Lovett Stations (located in the same river reach but not part of the HRSA nor the subject of this FEIS; see Fig. 2 at end of Regulatory Setting). The most important effect of drawdown is that it dramatically reduces food availability within the ecosystem and, thus, survivability of multiple species over significant stretches of the Hudson River. 119 Capriulo, G. M., G. Smith, R. Troy, G. H. Wikfors, J. Pellet, and C. Yarish. 2002. The planktonic food web structure of a temperate zone estuary, and its alteration due to eutrophication. Hydrobioloqia 475/476: 263-333. 120 HydroQual, Inc. 1999. Modeling the Entrainment of Passive Particles Into Hudson River Power Plants. For Orange and Rockland Utilities, February 1999, by HydroQual, Inc., Mahwah, NJ. 121 From HydroQual, 1999. 122 HydroQual, 1999. Page 54 of 93

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0 10 20 3 050 60 70 80 90 100 Distance (kmn) From Hastings-cm-Hudson Figurc 3 Enitraimncnt prob:abiliy (E. P.) at each of the live power plants versus particle releasing locaLions along the main river channel under the hieh-flow condition.

Fish Populations - 2. Many species in the Hudson River system are actually declining. While the striped bass (SB) population is up, that increase may be the result of other management decisions and activities. Historic baseline or trend data is not substantially discussed. In Section VI (p. 36), the DEIS concludes that "...the fish community in this system remains healthy and robust, and consistent with that expected in a large temperate estuary like the Hudson." It further states that "While changes in the composition and abundance of this fish community have been observed, all appear attributable to factors other than power plant operation." The Hudson River has been the subject of more than 25 years of fisheries investigations, and, as such, is one of the most intensively studied rivers in the world. These studies have revealed that, although overall species richness (the total number of species) is high, with more than 200 species recorded, diversity (which incorporates consideration of abundance and distribution amongst the species) is relatively low; most of the River's fish production is concentrated among a few of these species. Overall species richness and overall abundance of fish larvae in the river have increased since 1974. However, increases in species richness are mainly due to an increase in use of the River by marine species, and increases in abundance can be attributed to increases in but two species, striped bass and Atlantic silversides. Species richness and abundance in both young-of-year and older fish have decreased over this same period, especially among freshwater species, as described below.' 24 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.125 The American shad stock in the Hudson river has been in decline' since the early 1990's. White perch eggs, yolk-sac and post yolk-sac larvae abundance has remained stable since the mid 1980's; however, indices of young-of-year and older fish have shown declines since the late 1970's.126 Atlantic tomcod juvenile abundance has shown no trend, but adult abundance over the last 10 years has been lower than in previous years and continues to show high interannual 124 Dey, W., S. Jinks and N. Decker, 2003. Changes in the Fish Community Throughout the Hudson River Estuary. At Hudson River Environmental Society Presents: Hudson River Fishes & Their Environment. March 20-21, 2003, Marist College, Poughkeepsie, NY. No published proceedings. 125 ASA Analysis and Communications. 2002. 1999 Year Class Report for the Hudson River Estuary Monitoring program. August 2002. 126 Wells, A. W. 2003. Status of White Perch in the Hudson River. At Hudson River Environmental Society Presents: Hudson River Fishes & Their Environment. March 20-21, 2003, Marist College, Poughkeepsie, NY. No published proceedings. Page 57 of 93

variability.' 2 7 Rainbow smelt have been virtually absent from the collections from the long river and fall shoals surveys since 1995.128 Declines in the abundances of several species and changes in species composition raises concerns and questions regarding the health of the River's fish community. The Hudson River environment has undergone a number of significant changes in recent decades. In addition to changes directly attributable to power plants, these changes include: water quality, especially as a result of major improvements in sewage treatment; invasions by exotic species such as water chestnut and zebra mussels; hazardous substances contamination, especially PCBs, organochlorine pesticides and heavy metals; global climate change, which includes both increasing annual mean temperatures and higher frequencies of extreme weather events; and the management of individual species, such as striped bass, which have undergone strict regulation for both the recreational and commercial fisheries. Each is a stressor, to a greater or lesser extent, on the River's biota. For example, the zebra mussel invasion, which began in 1991, is thought to have caused very large reductions in the biomass of plankton and non-zebra mussel macroinvertebrates. Overall, it is estimated that the biomass of these forage invertebrates has dropped 29 by approximately 50 percent, leading to large changes in the fish community.1 The impingement, entrainment and thermal impacts caused by the HRSA facilities are well-documented elsewhere in this FEIS and in other portions of the HRSA proceedings. The 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. Although the primary cause of these population changes cannot conclusively be attributed entirely to the operation of these three steam electric generating stations, the mortality that they cause must be taken into account when assessing these population declines. 127 Young, J., M. T. Mattson , Q. E. Ross and D. J. Dunning. 2003. Population Fluctuation of Atlantic Tomcod in the Hudson River Estuary. At Hudson River Environmental Society Presents: Hudson River Fishes & Their Environment. March 20-21, 2003, Marist College, Poughkeepsie, NY. No published proceedings. 128 The "long river", or Longitudinal River Ichthyoplankton Survey (LRS) encompasses the entire length of the Hudson River Estuary, from the Battery (River Mile, RM, 1) to the Federal Dam in Troy (RM 152). The LRS yields ichthyoplankton data to support calculations of standing crop, temporal and geographical indices, and growth rates for selected Hudson River species (Atlantic tomcod, American shad, striped bass, white perch and bay anchovy). LRS sampling is concentrated during the spring, summer and early fall when eggs and larvae of the selected species have been historically abundant. Fall Shoals Survey (FSS) samples are collected every other week from the Battery to the Federal Dam in Troy from mid-summer through the fall. The FSS objective is to provide data on young-of-year (YOY) fish to support calculation of standing crop and temporal and geographical indices of for selected Hudson river species (Atlantic tomcod, American shad, striped bass and white perch). From ASA 2002. 179 Strayer, D. L., N. F. Caraco, J. J. Cole, M. L. Pace, S. Finlay, K. A. Hattala, and A. W. Kahnle. 2003. Ecological Changes From Two Recent Species Invasions in the Freshwater Tidal Hudson River. At Hudson River Environmental Society Presents: Hudson River Fishes & Their Environment. March 20-21, 2003, Marist College, Poughkeepsie, NY. No published proceedings. Page 58 of 93

Fish Populations - 3. Several commentors questioned one or more of the assumptions used in one or more of the population models; in particular, density-dependence is unproven. The DEIS relies on fish population modeling to support the generators' conclusion that entrainment mortality is not significant for two species, tomcod and striped bass, based upon compensatory density dependence.' 30 Bay anchovy do not have a population model presented in the DEIS. However, a Production Foregone model that is based upon data from the Chesapeake Bay predicts that bay anchovy populations in the Hudson River could remain stable if there were an annual influx of migrants from a general east coast population. A population dynamics model is not presented for white perch in the DEIS. Thus, estimated impacts of entrainment and impingement for this species are highly speculative. The American shad population model in the DEIS shows significant variation in abundance between 1990 and 1997; the stock apparently has not recovered from low numbers in recent years and may be over-exploited unless high density-dependence is assumed. Models were not prepared for other species. The Department concludes that the models and analyses presented in the DEIS are somewhat useful, but that there are significant questions and concerns regarding the inputs and assumptions for each species analysis which may result in very different conclusions than those presented in the DEIS. It is noteworthy that the analyses and conclusions performed by three different sets of professional fisheries population modelers, in three different countries and with different backgrounds, all point out significant concerns within each model and that alternative results could easily be presented. These modelers represent the generators, the Department and ESSA Technologies, Ltd., and environmental organizations; this is a diverse group that is not predisposed toward a common outcome. What is clear from the data and analyses presented in the DEIS is that entrainment and impingement, primarily the former, are eliminating a significant portion of the above-listed species in their egg and larval forms, as well as many more species which spawn or spend part of their life stages in the lower Hudson River. While it is reasonable to conclude that some of these losses may be compensated for by increased survival of organisms not killed, it is not possible to determine the impact of these losses on adult populations with much confidence. Fisheries scientists are keenly aware of dramatic natural changes in fish populations, both on an annual basis and long term. There are a great many natural reasons for these changes. The Hudson River is a dynamic system with many environmental 130 The Dictionary of Ichthyology, Brian W. Coad and Don E. McAllister, Revised: 13 May 2003, provides the following definitions: Density dependence = the dependence of a factor influencing population dynamics (such as survival rate or reproductive success) on population density. The effect is usually in the direction that contributes to the regulative capacity of a stock. Compensatory survival = a decrease in the rate of natural mortality that some fish show when their populations fall below a certain level. This may be caused by less competition for food and living space. For a general discussion of the concepts, see Boreman, John. 2001. Surplus Production is a Myth. 10 pp. Included in Appendix F-V. Page 59 of 93

parameters differing from apparently natural causes each year. Flow, temperature, salinity, dissolved oxygen, nutrients and others fluctuate markedly. Many of these same parameters are influenced by human activities, too. Addition or deletion of pollutants, invasion by exotic species of plants and animals, habitat management, and fishing pressure and regulations all combine with the withdrawal of billions of gallons of water each day, for cooling purposes at steam electric stations as well as for other industrial or public water supply uses, and with very large amounts of thermal inputs, to contribute to changes in the River. Attempts to identify, measure and understand specific impacts are complicated by the array of interacting and potentially confounding variables. The inherent uncertainties of data management and especially population models cast further doubt on available information and analyses. Data in the 1999 DEIS and comments on the topic of population dynamics and modeling identify entrainment rates for fish eggs and larvae as significant impacts. They also indicate that neither the terms of the HRSA and subsequent Consent Orders nor the applicants' proposed actions would reduce this impact to levels consistent with BTA requirements. The body of analyses in the fish population models presented in the DEIS indicates that the models overestimate the role of density dependence and thereby underestimate impacts associated with entrainment and impingement. This leads the Department to conclude that this modeling effort alone will not conclusively show whether or not fish populations are significantly affected by entrainment and impingement. Therefore, the Department has determined to not rely on these models to make conclusions for this FEIS or for the SPDES permits to be issued for each of the three HRSA power plants. Detailed reviews of population dynamics models are presented in the ESSA Technologies, Ltd. report Review of the Draft Environmental Impact Statement, dated October 20, 2000, and the reviews of the Atlantic Tomcod, Bay Anchovy, Striped Bass, and American Shad models appended to it.1 31 Additional comment on the models, as well as other topics, was provided by Dr. Peter Henderson of Pisces 3 Conservation, Ltd. representing the Riverkeeper, Scenic Hudson and NRDC.' 7 13 1 ESSA Technologies, Ltd. 2000. Review of the Draft Environmental Impact Statement for SPDES Permits for the Bowline Point 1 & 2, Indian Point 2 & 3, and Roseton 1 & 2 Steam Electric Generating Stations. Report to the Parties to the Application. Prepared by ESSA Technologies, Ltd., Richmond Hill, ON, for NYS DEC, Albany, NY. 31 pp plus Appendices; the full set of ESSA reports is included as Appendix F-V to this FEIS. 132 PISCES, 2000. Page 60 of 93

Atlantic Tomcod The Atlantic Tomcod population in the Hudson River appears to be declining rapidly. This conclusion is supported in the DEIS by 1989-97 early life-stage data.133 The DEIS further asserts that, "... Adult abundance in recent years is distinctly lower than it was in the 1970s ... ,.'3 Because this species is at the southern edge of its geographic range, observed declines could be the result of increasing river temperatures, whether from thermal discharges, global climate change, or other unidentified factors. Nevertheless, the population stability predicted by the population model in the DEIS is predicated upon a conclusion that significant density-dependent mortality occurs for this species at the life stage after most entrainment mortality has occurred. If the conclusion proves to be based upon limited data or errors in analysis (as suggested by ESSA Technologies, Ltd. in their initial DEIS review),1 35 then the Hudson River tomcod population is not determined by this density-dependent mortality and the generators proposed actions could instead increase the conditional entrainment mortality rate (CEMR) of this species."36 133 1999 DEIS, p. V-43, Figure V-65

            "'   1999 DEIS, p. VI-11 13s  Parnell, I., D. Marmorek, and R. Derlso. 2000. Review of the Assessment of Atlantic Tomcod. Companion Report to Chapter 3 in ESSA, 2000.

136 Conditional Entrainment Mortality Rate (CEMR) is the probability of a fish dying from passage through the cooling water system of a power plant. It is expressed as a percentage and measures how many fewer Hudson River fish exist at the end of their first year of life (actually at September 1) than would exist if not for the loss to entrainment. The actual computations are based on measurements of mortality rates of all life stages of fish. These stages include eggs, larvae, juveniles and even some small adults; larger fish usually do not become entrained because they can swim well enough to escape from the intake current or are protected by mechanical devices such as racks or screens installed expressly to prevent entrainment. Because much of the raw data involves early life stages, the mortality rates of eggs and larvae are "normalized" to a rate expected of young-of-the-year fishes on September 1. This statistical process is based on existing information about expected mortality (or its inverse, survival) of each life stage from natural causes, such as predation. This survival information varies among species. For most species, natural mortality of early life stages is very high. For example, for striped bass, about 75 percent of eggs die before they hatch to become yolk sac larvae. Similarly, mortality can be as high as 89 percent as the yolk sac larvae mature to become post-yolk sac larvae. This natural attrition continues throughout the life cycle. Typically, only two-hundredths of one percent of striped bass eggs would survive to become juveniles on September 1; this is a survival rate of .0002. The CEMR, then, accounts for such natural mortality rates when it is used to calculate mortality attributable to entrainment at power plants, See Public Service Electric and Gas Company (PSE&G). 1999. 316(b) Demonstration for the Salem Nuclear Generating Station. Appendix L in Application for Certification of a Major Electric Generating Facility Under Article X of the New York State Public Service Law, Appendix 8b. 2000. TRC Environmental for KeySpan Energy. Page 61 of 93

Population declines could continue and ultimately result in the elimination of this species in the lower River.13 7 Striped Bass The DEIS presents arguments in support of the generators' proposed action, and the resulting mortality of this species due to entrainment and impingement, that are based upon the assumption of strong density dependence within the striped bass population in the Hudson River. ESSA Technologies, Ltd. has noted that this conclusion is based upon data and model assumptions that, if not faulty, may not be the only data and assumptions that could be employed in the model.' 3 8 For example, fishing mortality estimates presented in the model are inconsistent with recent tagging analyses and stock assessments developed for Atlantic coast stocks. 139 An alternative analysis could be presented that indicates much lower density-dependence; such an indication would lead to a prediction of a much greater impact from entrainment and impingement. White Perch A population dynamics model was not prepared for this species because the Technical Workshops concluded that the data do not support development of a defensible model. However, juvenile and age-1 abundance indices suggest that white perch numbers in the Hudson River are declining.140 This contrasts with the DEIS conclusion that the population appears resilient enough to sustain its population in the future under similar levels of power plant mortality. These conditional mortality rates (CMR) are stated to be approximately 21 percent over the period of analysis presented. As with other species, use and interpretation of other available information can easily result in very different conclusions regarding impacts 137 See also Everly, A. W. and J. Boreman. 1999. Habitat use and requirements of important fish species inhabiting the Hudson River Estuary: Availability of Information. NOAA Tech. Memorandum NMFS-NE-121. US Dept. of Commerce, National Marine Fisheries Service, Northeast Fisheries Science Center, Woods Hole, MA. http ://www.nefsc.noaa.gov/nefsc/publications/tm/tm 121/tm 121.pdf Of the 140 species that occur in the Hudson River Estuary, Everly and Boreman also chose Atlantic Tomcod as one of their 11 representative species for their study. Tomcod were chosen as Important and representative of the fish community of the Hudson River as euryhaline nonmigratory species. The life history synopsis on p.14 illustrates the exposure of this species to entrainment, impingement, and thermal pollution impacts from once-through cooling, by virtue of its life cycle in the Hudson River. 138 Deriso, R., D. Marmorek, and I. Parnell. 2000. Review of the Assessment of Striped Bass. Companion Report to Chapter 5, in ESSA, 2000. 139 Deriso et al, 2000. 140 Parnell, I. and D. Marmorek. 2000. Review of the Assessment of White Perch. Companion Report to Chapter 6, in ESSA, 2000. Page 62 of 93

of entrainment and impingement. In their earlier reviews, the HRSA technical workshops and the review by ESSA Technologies, Ltd. recommended that topics and issues stemming from data limitations be considered in the DEIS analysis. This was not done. American Shad American shad population impact analysis in the DEIS is based upon Hudson River Shad Assessment and Equilibrium Calculations: Revision of the 1995 Report to Include Data Through 1997, by Dr. Richard Deriso, Kathryn Hattala, and Andrew Kahnle.' 4 ' Ms. Hattala and Mr. Kahnle are Department staff and Dr. Deriso is a consultant to ESSA Technologies, Ltd., the Department contractor that assists in review of population dynamics modeling, among other topics. This analysis was the only model which employed more than one level of density dependence to determine abundance. The DEIS concludes that the American shad population appears healthy and able to sustain itself within the constrains of the proposed action. This is the least conservative conclusion that can be drawn from the data presented. More likely is the conclusion that the stock has not shown any recent recovery from very low levels ("At the present time, shad stocks in the Hudson River are at an all-time low" 142), and both entrainment and fishing mortality rates need to be minimized. Bay Anchovy Bay anchovy population modeling presented in the DEIS was developed to analyze this species in the Chesapeake Bay and used data from that water body, not from the Hudson River. The model's author, Dr. Kenneth Rose, presented many analytical caveats that should be used in the application of the model; the model is very sensitive to different assumptions. The discussion of the model results presented in the DEIS, however, does not acknowledge these limitations. This model estimates production foregone, in contrast to other population dynamics models. The analysis overestimates the predatory demand of striped bass and bluefish because their populations have increased so markedly and suggests that anchovy spawner immigration serves to avoid population extinction caused by entrainment and impingement in the Hudson; this immigration would come from the Atlantic coast stock. This assumption appears to ignore entrainment and impingement impacts from the many other coastal power plants which affect the coastal anchovy population. Therefore, the conclusions concerning bay anchovy presented in the DEIS are not sufficiently supported by the model. 141 Appended to ESSA, 2000.

            "' DEIS, p. V-101 Page 63 of 93

Fish Populations - 4. Climate, disease, and the changing ecology of the Hudson River system are not considered in the population models. Any measurement of ecological impacts attributable to power generating stations is confounded by the changing ecosystem itself. As will be discussed here and in following sections, the Hudson River ecosystem has undergone numerous profound changes in the last few decades, many of which are continuing. The population models presented in the DEIS do not account for such fundamental and dynamic ecosystem influences as climate, disease, water quality, flow and invasive species. For example, n the years since the 1999 DEIS was published, Atlantic tomcod have continued to decline, contrary to the predictions of the model presented in the DEIS., 4 3 Rainbow smelt numbers, too, have declined significantly during this period. In addition, many assumptions in the model and the selective use of datasets for the various models cast doubt on the validity of many of the conclusions presented in the DEIS.'4 For example, different years of data are used throughout the DEIS in order to demonstrate a lack of correlation between post-yolk sac (PYS) and juvenile fish of a selected species. Although the DEIS asserts that this relationship between PYS and juveniles demonstrates density-dependent compensation, other, more plausible explanations are available. If one is to entertain the concept of density-dependent compensation as a mechanism by which fish populations respond to changing stressors within their environment, it must be evaluated against the many changes which can impact the population, not only the indiscriminate cropping imposed by cooling water intakes. Even if density dependent compensation exists, it cannot be presumed that the ability to make up for natural and anthropogenic induced mortality is infinite. The factors above, which are only recent examples of changes affecting fish in the Hudson, illustrate how many factors can consume portions of any compensation ability fish populations may have. Climate Change Over the past decade a large body of data has been collected in a variety of scientific disciplines which indicates that climatic changes are occurring on a global scale.145 Growing evidence suggests that temperature has increased over the past century at an accelerated rate. One indicator of this change has been increased ocean temperatures. Of the marine waters of the world, coastal areas and estuaries are most susceptible to climatic changes due to their relatively shallow depth and proximity to land. These coastal areas are also the most biologically productive as

           '4'  ASA, 2002.

144 PISCES, 2000. 145 Kennedy, V., et al. 2002. Coastal and Marine Ecosystems and Global Change. Prepared for the Pew Center on Global Climate Change, Arlington, VA. Page 64 of 93

the majority of marine fishes spawn, and many mature in near shore or inshore areas. Though estuaries only represent approximately 0.5 percent of the world's marine environment, they support about 5 percent of global fish production.14 6 Many scientists believe that the accelerated increase in global temperatures is due primarily to anthropogenic impacts. Chief among these is the emission of "greenhouse gases" produced by burning fossil fuels. The accumulation of these emissions in the atmosphere causes air temperatures to increase; this indirectly increases temperatures of oceans, estuaries and other surface waters. Because of their proximity to land, estuaries and coastal waters are also directly influenced by other human activities which may increase temperature, such as by storm water runoff from impervious surfaces, wastewater effluent and cooling water discharges. A review of data collected over a 51-year period indicates increases in water temperature of the Hudson River Estuary in the last half of the twentieth century. 47 Very small changes in water temperature have been shown to affect many species of fish, particularly during early life stages.' 4 8 Temperature changes may influence spawning success, early life stage development, and survival of ichthyoplankton and adults.149 Most vulnerable would be cold water species, and impacts upon these species would be an early indicator of changes which could eventually affect any and all species inhabiting a water body. Rainbow Smelt Rainbow smelt may be disappearing from some reaches of the Hudson because of thermal discharges from electric generating stations. The rainbow smelt (Osmerus mordax) is a small soft-bodied species which inhabits coastal areas of North America from Labrador to as far south as Virginia. Smelt also occur naturally as landlocked populations in some lakes in New England and eastern Canada. In 1912, smelt were introduced into Crystal Lake in Michigan. From there they spread throughout the Great Lakes where they are now found in abundance."'s Coastal populations support 146 Kennedy, 2002. 147 Ruggiero, R. Hudson River Temperature Data Collected at the City of Poughkeepsie Water Treatment Facility. Unpublished; submitted to Department March 6, 2003. Copy in Appendix F-V. 148 Kennedy, 2002. 149 USEPA - New England, 2002. CWA NPDES Permit Determinations for Thermal Discharge and Cooling Water Intake from Brayton Point Station in Somerset, MA. July 22, 2002. 150 Buckley, J. L. 1989. Species Profiles: Life Histories and Environmetnal Requirements of Coastal Fishes and Invertebrates (North American) Rainbow Smelt. USFWS Biological Report 82(11.106) TR EL-82-4. Page 65 of 93

recreational fisheries and modest commercial fisheries in New England .'5' Ecologically, smelt serve as forage for species such as striped bass and bluefish.1 S 2 Research conducted by the Massachusetts Division of Marine Resources has documented relatively stable populations of smelt in several rivers located in Massachusetts through 2000.153 Studies conducted by Dominion Nuclear Connecticut, Inc. as a requirement of the operation of the Millstone Power Station also demonstrate a stable population of smelt in the Niantic River and adjacent areas of Long Island Sound through 2000.154 In contrast, data collected by the Hudson River Estuary Monitoring Program, contained in the 1999 Year Class Report, document the apparent local disappearance of rainbow smelt.lss 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. Such a trend, if continued, could impact other species. This circumstance warrants review of thermal contributions to the Hudson River Estuary. Atlantic Tomcod Atlantic tomcod declines, too, may be attributable to the effects of cooling water intakes at electric generating stations in the Hudson River. Like smelt, the Atlantic tomcod (Microgadus tomcod) is a cold water species that has declined dramatically since 1995.156 Tomcod populations in the Hudson River have been monitored since 1974 with a mark-recapture program using box traps. In 1982, trawling, primarily south of the George Washington Bridge, was added as a means of collecting fish. The population of tomcod fluctuated but remained abundant through 1995, after

           's' Chase, B. and C. Childs, 2001. Rainbow Smelt (Osmerus mordax)

Spawning Habitat in the Weymouthfore River. Massachusetts Division of Marine Fisheries Technical Report TR-5. 152 Buckley, 1989. 153 Chase & Childs, 2001. 154 Keser, M. 2001. Monitoring the Marine Environment of Long Island Sound at Millstone Power Station, 2000 Annual Report. Environmental Laboratory, Millstone Power Station, Dominion Nuclear, Waterford, CT. 1s5 ASA, 2002. 156 ASA, 2002, and prior (1996-99) Hudson River Year Class Reports. Normandeau Associates, Inc. (NAI). Letter reports and field data from M. Ricci to J. Kelly on the Striped bass and Atlantic tomcod Mark Recapture Program; April 26, 2002, and April 22, 2003. Page 66 of 93

which a steady decline has occurred. During the 2001-2002 and 2002-2003 57 sampling seasons, tomcod have become virtually absent." The tomcod has a much shorter life span in the Hudson River than in more northern systems, living only about 2 years. Three-year and older fish represent a tiny fraction of the population (0.6 percent in 1995-96 season) and the majority of the spawning stocks are 1-year-old fish. 5 8 In contrast, stocks in other areas in New England and Canada are much longer-lived and spawning stocks are dominated by 2-year-and-older fish. Numerous studies have been conducted investigating anthropogenic impacts upon tomcod inhabiting the Hudson River Estuary and have revealed a very high incidence of liver cancer.' 59 Recent research indicates a synergistic effect from elevated levels of polycyclic aromatic hydrocarbons (PAHs), which appear to damage hepatic DNA, leaving the fish more susceptible to PCB-induced early life-stage toxicities.160 In addition to chemical contaminants, other impacts upon the Atlantic tomcod population which have been investigated include: reductions in food sources; predation; and mortality due to cooling water intakes estimated at approximately 22 percent of each year class (1974-1997). The Hudson River is the southern extreme of the range for tomcod. While stocks in Massachusetts waters appear to be stable, preliminary observations suggest that the abundance of tomcod in Connecticut has declined.' 61 As discussed above, these declines in populations at the southernmost portion of the species range could indicate temperature-induced impacts from climatic changes acting to shrink the species range. In the Hudson River this effect could be exacerbated by the addition of thermal discharges from power plants. 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 157 NAI, 2002-03.

           '58 Lawler, Matusky and Skelly Engineers (LMS),1999. Abundance and Stock Characteristics of Atlantic Tomcod Spawning Population In the Hudson River, Winter 1995-1996. Prepared for NYPA, White Plains, NY.

159 Schrelbman, M. and ). Young. 2002. Physiology Investigations of the Atlantic Tomcod. Aquatic Research and Environmental Assessment Center and ASA Analysis & Communications, Inc. 160 Wirgin, 1. 2003. Contaminants: Use of Atlantic Tomcod as a Model to Evaluate the Possible Toxic Effects of Pollutants on Hudson River Populations. At Hudson River Environmental Society Presents: Hudson River Fishes & Their Environment. March 20-21, 2003, Marist College, Poughkeepsie, NY. No published proceedings. 161 Simpson, D. 2003. Personal communication from Connecticut Department of Environmental Protection to this Department regarding Connecticut information on Atlantic tomcod abundance in tributaries to Long Island Sound. Included in Appendix F- V. Page 67 of 93

near Con Hook approximately 5 river miles upriver from Indian Point.162 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.163 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 164 (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.1 65 Less than average rainfall from 1995 into 2002 reduced the freshwater flow in the Hudson River. This period corresponds to the period of rapid decline in numbers of Atlantic tomcod in the Hudson River. Many factors are impacting tomcod populations: climatic trends leading to increased water temperatures; decreases in available food resources caused by improvements in waste water treatment and the invasion of zebra mussels; increased predation from increased striped bass populations; and the physiological effects of chemical pollutants.16 6 These multiple stressors can exacerbate the effects of heat discharged from generating stations, particularly during low freshwater flow periods. Not only could increases in river temperatures decrease the survival of larval tomcod, but higher temperatures could also depress the growth rate of this species. Since the fecundity of females is proportional to size, higher water temperatures could result in fewer young produced. Should these factors, in combination with the mortality induced by entrainment, significantly depress tomcod populations in the Hudson River, further ecological repercussions could be expected to follow on populations including striped bass, for which tomcod are a significant food source.167 Neither the tomcod nor the striped bass population model proposed in the DEIS, however, has any means to integrate these variables. Comb Jellies Members of the phylum Ctenophora are commonly known as comb jellies and are found in the Hudson River. In most years they become abundant in the lower reaches of the River and New York Harbor from June to September when increases 162 Dew, B. C. 1991 Early Life History and Population Dynamics of Atlantic Tomcod (Microgadus tomcod) in the Hudson River Estuary, New York. Doctoral thesis submitted to the City University of New York, NYC, NY. 163 DEIS, Appendix VI 164 Dew, 1991. 165 Dew, 1991. 166 Wirgin, 2003. 167 Dew, 1991. Page 68 of 95

in salinity and temperature typically occur. Comb jellies are a voracious predator feeding on invertebrates and larval fishes. In areas of high comb jelly density, ichthyoplankton samples collected contain few larval fish. An analysis of data collected to assess the impacts of the Brayton Point station located on Mount Hope Bay in Massachusetts determined that water temperature increases resulted in an increase in the population of comb jellies, as well as the extent of their range and the length of time they were present. The warming was directly attributable to the cooling water discharge of the plant. 168 Observations of the comb jelly population in the Hudson River over the past 10 years indicate that a similar trend is occurring. While the warming climate may be influencing the abundance and distribution of comb jellies, thermal discharges, particularly in spawning and nursery areas of the Hudson River, should not be discounted. Zebra Mussels Zebra mussels (Dreissena polymorpha), an invasive species of bivalve first observed in the Hudson River in 1992, appear to have caused very significant reductions in primary production (plant life, including phytoplankton) in the freshwater portion upriver of River Mile 63. Between 1987 and 1991, before the invasion of zebra mussels, summertime concentrations of chlorophyll averaged 30 mg/m 3 . During 1993 and 1994, concentrations dropped to 5 mg/m3.169 This ecological change is not presented in the DEIS or reflected in the models offered in the DEIS. Densities of both phytoplankton and small zooplankton (rotifers, tintinnids, and copepods) dropped to 10 to 20 percent of their previous levels after zebra mussels invaded the Hudson.1 70 This reduction directly affects planktivorous fishes and early-life-stages of fishes which feed upon small zooplankton. The copepod population did not change with the arrival of zebra mussels, however, Bosmina (a genus of water flea) declined by 50 percent.17' The continued presence of copepods, a preferred prey of young fish, may have insulated higher trophic levels in the Hudson from the negative effects of the zebra mussel population.' 7 2 However, in contrast to Dr. Strayer's assumption, the 1999 Hudson River Year Class Report provides clear evidence of several anadromous and resident species of fish in decline during the 168 USEPA, 2002.

           *r9 Caraco, N. F., et al. 1997. Zebra Mussel Invasion in a Large, Turbid River: Phytoplankton Response to Increase Grazing. Ecology 78(2), 1997, pp. 588-602. Ecological Society of America.

170 Caraco et al., 1997. 171 Strayer, D. L., et al. 1999. Transformation of Freshwater Ecosystems by Bivalves, A Case Study of Zebra Mussels in the Hudson River. BioScience, volume 49(1), pp. 19 - 27. 172 Strayer et. al., 1999. Page 69 of 93

post-zebra mussel invasion period.1 7 3 One group of organisms which has increased significantly since the appearance of zebra mussels is bacteria, but no information on 74 any pathogenic effects upon fishes in the Hudson has been found.' 173 ASA, 2002. 174 Strayer et. al., 1999. Page 70 of 93

Fish Population - 5. Thermal analyses need to be updated to reflect recent, more extreme conditions. The Department concurs with this comment. Thermal discharges were inadequately addressed in the DEIS. The DEIS asserts, with no supporting evidence, that "... [t]he surface water orientation of the plume allows a zone of passage in the lower portions of the water column, the preferred habitat of the indigenous species." Other data and analyses cast doubt on this assertion. The sheer volumes of water necessary to meet the HRSA plants' cooling requirements are enormous. Together, Indian Point, Roseton, and Bowline are authorized to withdraw 1.69 trillion gallons per year for cooling water, and they discharge 220 trillion BTU of waste heat per year.175 The volume of once-through cooling water is raised 1 between 150 and 180 F, depending on the plant,176 or an average of 16.20F. 77 Some graphics and imagery effectively illustrate the basis for the Department's concerns. A study by HydroQual, Inc., examined passive particle movement and also investigated thermal and salinity profiles in several river reaches, including the portion of the Hudson River where the HRSA plants are located.1 78 Figures 6 and 7 of this FEIS (following pages), excerpted from that study, show two vertical temperature profiles of the Hudson River from NYC to just above the northernmost of the HRSA plants, one during a spring and the other during a neap tide. Based on these representations, it appears that there may be times and conditions where effluent-warmed waters occupy nearly the entire vertical water column. 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.' 7 9 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. Because the HRSA facilities and two other steam electric generating stations are essentially clustered in two relatively compact stretches of the Hudson River, there 175 Power Plants with SIC code 4911, in Appendix F-V. Indian Point, Roseton, and Bowline are the first-, sixth, and seventh-largest users of water in the State, with a combined intake flow of 7,177 CFS (cubic feet per second). 176 DEIS Chapter IV-B, Tables IV-6, IV-9, and IV-11. NOTE: AT (change in temperature) should read 'F not 'C. 177 E (volume each plant

• AT each plant) / (. volume of the 3 plants) =

mean AT 178 HydroQual, 1999. 179 Note that Unit 2 discharge canal is cold, so the plume shown resulted from generation and discharge at Unit 3, only, at Indian Point, plus Lovett. Page 71 of 93

is a strong potential for thermal effects on the river and its aquatic resources to be additive. Given the extent of warming shown in the HydroQual graphs, combined with the recent dramatic declines in tomcod and rainbow smelt as discussed previously, the Department believes it prudent to seek additional thermal discharge data for each facility, including a mixing zone analysis, and anticipates requiring tri-axial thermal studies as conditions to each of the SPDES renewals. Depending on the results of those analyses, additional controls may be required to minimize thermal discharges. Page 72 of 93

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Fig.8. Thermal Plumes from Indian Point, Unit 3, and Lovett Station, Tompkins Cove, Hudson River, New York State. (Original photo @Spectra Vista Corp, with permission) Page 75 of 93

Fish Protection Points - 6. Fish protection points (FPP) would provide operational flexibility but even less protection than conditions in the Hudson River Settlement Agreement (HRSA). The Fish Protection Point system proposed by the generators in the 1999 DEIS would allow a great deal of operational flexibility for the three HRSA plants. While some consideration of the need for generation capacity is warranted, particularly during periods of high electricity demand, the proposed system would sacrifice reductions in fish mortality in order to maximize freedom of plant operations. As proposed, the DEIS' preferred alternative would be less protective of aquatic resources than measures under the HRSA and subsequent Consent Orders. Tables 4-A, B and C (following) compare several alternative operating scenarios and entrainment or impingement mitigation strategies for the HRSA plants. The tables display predictions of conditional mortality rates for 6 fish species, the volume of water used, and the volume of water lost to evaporation under a variety of mitigation strategies at each of the 3 plants. The tables use italicized text to indicate those values which would result from the implementation of the strategies agreed upon in the 1981 Settlement Agreement; they serve as the basis for comparison. Values which would reduce environmental impacts, by providing a higher level of fish protection or by using less water, are indicated by bold text. Values which cause greater environmental harm, by providing lower levels of fish protection or using more water, are indicated by both bold text and gray shading. It is instructive to note that, with respect to fish protection, only the proposed Fish Protection Points strategy would result in lower levels of protection than would be provided by the 1981 Settlement Agreement strategies. At Bowline Point, a single species would suffer greater losses, but at both Roseton and Indian Point, protection would be reduced for 3 of the 6 species. Page 76 of 93

Table 4. Comparisons of Selected Mitigation Alternative Strategies Key: x.xx Same as 1981 Settlement Agreement y-yy Better than 1981 Settlement Agreement L zz I Worse than 1981 Settlement Agreement CEMR Conditional Entrainment Mortality Rate18 2 MGD Million Gallons per Day A. BOWLINE POINT Striped American River Bay Atlantic White Water Water Bass Shad Herring Anchovy Tomcod Perch Volume Evaporated Alternative CEMR CEMR CEMR CEMR CEMR CEMR MGD MGD 1981 Settlement 0.80 0.05 0.19 3.93 6.39 1.01 910.00 5.18 conditions Hybrid Towers 0.10 0.00 0.00 0.14 0.53 0.02 43.20 12.96 (full year) I I Hybrid Towers 0.10 0.00 0.00 0.14 0.53 0.02 369.30 10.04 (seasonal) ___ Fish Protection 0.77 0.02 0.12 3.93 7.13 0.27 910.00 5.18 Points Gunderboom 0.18 0.01 0.04 0.86 1.39 0.22 910.00 5.18 (full year) II Gunderboom 0.10 0.00 0.17 0.14 0.53 0.12 910.00 5.19 (seasonal)+ net 32-week Outage 0.00 0.00 0.00 0.00 0.00 0.00 349.80 1.99 Notes GG. Values for the CEMR for 1981 Settlement Conditions, Hybrid Towers and the Fish Protection Points are from the 1999 DEIS. HH. Values for seasonal use of the Hybrid Towers (seasonal) are based on their use February 15 to September 15 (approximate dates) and were computed by Department staff. II. Values for Gunderboom assumed an 80 percent efficiency, with full flow to the facility and were computed by Department staff. JJ. Values for the 32-week outage are based on an outage from February 15 to September 15 (approximate dates) and were computed by Department staff. 182 See Footnote 134 of this FEIS. Page 77 of 93

Table 4 (cont). Comparisons of Selected Mitigation Alternative Strategies Key: X. XX Same as 1981 Settlement Agreement y.yy Better than 1981 Settlement Agreement ZLI. Worse than 1981 Settlement Agreement 5 CEMR Conditional Entrainment Mortality Rate17 MGD Million Gallons per Day B. ROSETON Striped America River Bay Atlantic White Water Water Bass n Shad Herring Anchovy Tomcod Perch Volume Evaporated Alternative CEMR CEMR CEMR CEMR CEMR CEM MGD MGD R 1981 2.40 0.78 3.28 0.51 1.67 4.92 923.00 5.18 Settlement conditions Hybrid 0.37 0.02 0.13 0.03 0.12 0.3 25.90 12.96 Towers (full 9 year) Hybrid 0.37 0.02 0.13 0.03 0.12 0.3 370.0 10.04 Towers 9 0 (seasonal) I I _ I Fish 3.32 0.45 3.21 1.01 1.59 6.39 923.00 5.18 Protection Points Gunderboom 0.50 0.16 0.68 0.11 0.35 1.0 923.00 5.18 (full year) I 1 _ 1 3 32-week 0.00 0.00 0.00 0.00 0.00 0.0 355.0 1.99 Outage 0 0 Notes: AA. Values for the CEMR for 1981 Settlement Conditions, Hybrid Towers and the Fish Protection Points are from the 1999 DEIS. BB. Values for seasonal use of the Hybrid Towers (seasonal) are based on their use February 15 to September 15 (approximate dates) and were computed by Department staff. CC. Values for Gunderboom assumed an 80 percent efficiency, with full flow to the facility and were computed by Department staff. DD. Values for the 32-week outage are based on an outage from February 15 to September 15 (approximate dates) and were computed by Department staff. Page 78 of 93

Table 4(cont). Comparisons of Selected Mitigation Alternative Strategies Key: X.XX Same as 1981 Settlement Agreement Y.YY Better than 1981 Settlement Agreement Worse than 1981 Settlement Agreement CEMR Conditional Entrainment Mortality Rate"7 ' MGD Million Gallons per Day C. INDIAN POINT Striped American River Bay Atlantic White Water Water Bass Shad Herring Anchovy Tomcod Perch Volume Evaporated Alternative CEMR CEMR CEMR CEMR CEMR CEMR MGD MGD 1981 7.82 0.64 1.20 10.38 12.04 4.94 2505.0 12.82 Settlement conditions Hybrid Towers 1.20 0.01 0.04 0.45 1.16 0.26 69.00 34.56 (full year) Hybrid Towers 1.20 0.01 0.04 0.45 1.16 0.26 982.0 26.40 (seasonal) 0 Fish Protection 10.69 0.18 0.81 13.22 13.9 4.35 2419. 12.82 Points 5 0 32-week Outage 0.00 0.00 0.00 0.00 0.00 0.00 964.0 4.94 0 Notes: AA. Values for the CEMR for 1981 Settlement Conditions, Hybrid Towers and the Fish Protection Points are from the 1999 DEIS. BB. Values for seasonal use of the Hybrid Towers (seasonal) are based on their use February 15 to September 15 (approximate dates) and were computed by Department staff. CC. Values for Gunderboom assumed an 80 percent efficiency, with full flow to the facility and were computed by Department staff. DD. Values for the 32-week outage are based on an outage from February 15 to September 15 (approximate dates) and were computed by Department staff. Page 79 of 93

The proposed system would allow the trading of fish protection credits among the HRSA plants and their operators. Such trading would alter fish protection significantly in years in which one plant was off-line because credit for the inactive facility could be applied to one or both of the other two. The nature of the aquatic resource impacts would change because the different plant locations support different species and different life stages of fish. For this reason, trading among facilities and different operators could lead to unpredictable and probably less effective mitigation. As of the writing of this FEIS in mid-2003, Roseton and Bowline operate as peaking load facilities, as opposed to base load operation which was the case when the DEIS was published in 1999. If trading of credits among facilities and operators were to be incorporated into the permits of the HRSA facilities, credits from Bowline and Roseton could allow Indian Point to operate with little or no mitigation. This scenario would be contrary to the site-specific nature of BTA determinations required by 6 NYCRR Part 704 and CWA §316(b). Carrying credits accumulated in one year forward to subsequent years would not be a change from HRSA requirements. However, as proposed in the DEIS, credits could be carried forward and transferred to another facility. As discussed above, trading credits between the three facilities would add a new dimension of uncertainty to fish protection. Allowing credits accumulated at one facility in one year to be credited to another facility in a subsequent calendar year would be likely to compound this uncertainty. Fish protection credit would also be added for the difference between SPDES flows (maximum pumping rate) and efficient flows at Indian Point, in contrast to the HRSA where credits were earned by operating Indian Point at mitigative flows (less than efficient). This change would lower the baseline from which credit for mitigation is measured. While not necessarily a reduction in fish protection from HRSA levels in and of itself, it would be coupled with a proposed level of protection less than HRSA levels. The lower starting point would mask some of the resultant reduction in fish protection. The proposed measures specific to Indian Point would provide a significant reduction of fish protection by eliminating any requirement for outages (days off line). The preferred alternative proposes to achieve fish protection at that site solely through flow reductions without any outages. This would eliminate the previous HRSA requirement for 42 unit-days off line each calendar year. The cumulative effect of the three changes described above would produce a scenario much lest protective than current conditions. In addition, no new measures to reduce fish mortality at Roseton and Bowline are proposed. These relaxations in mitigation appear inconsistent with "anti-backsliding" prohibitions of 83 the Clean Water Act.1 The following excerpt from the review of the 1999 DEIS written by ESSA Technologies Inc., for the Department, summarizes differences between the generators' preferred alternative and HRSA conditions. 183 CWA §303(d)(4)(B); 33 U.S.C. §1313(d)(4)(B); see also 40 CFR 131.12, 40 CFR 122.62, and 40 CFR 122.44. Page 80 of 93

"The proposed action put forward in the DEIS is a derivative of the Settlement Agreement scheme with some very critical differences. The proposed action:

1. translates the prior entrainment mitigation outage targets based on units of days to targets based on the aggregate Conditional Mortality Rate (CMR) due to entrainment for five target species: striped bass, American shad, bay anchovy, river herring and tomcod;

2. proposes that unlike the prior Credit Points, the new Fish Protection Points (FPPs) may be carried forward across years as well as traded between stations;

3. consistent with stipulated maximum flow requirements in the 1981 and 1987 SPDES permits for Indian Point, the proposal calculates and adds to the protection target the number of FPPs equivalent to the difference between "SPDES flows" and efficient flows for Indian Point Units 2 & 3;

4. proposes to continue the operation of current Modified Ristroph screen technology at the Indian Point Station for reduction of impingement mortality;

5. proposes to continue deployment of the barrier net at the Bowline Station for reduction of impingement mortality;

6. proposes to continue the management and mitigation regime for "thermal and chemical" discharge as carried out under the prior 1981 and 1987 permits, and

7. proposes to meet the requirements for entrainment mitigation exclusively through the management of station flows without necessarily invoking requirements for unit outages as previously required." 184 184 ESSA, 2000; Section 2.2. Back to FEIS Sections Page 81 of 93

Mitigation - 7. DEIS includes little information on barrier systems and acoustic deterrents. The Department concurs that additional information and updates to the data used in the DEIS are necessary. Additional information on several technologies follows. Wedge-Wire Screens Recent designs in water withdrawal technology have included development of wedge-wire screens to "filter" water prior to entrance into a system. Wedge-wire screens usually are designed with small openings, for example 2 mm slot width, but they can be designed with larger or smaller openings. Screening of water being withdrawn from a source water body is standard practice to eliminate fouling and clogging of pumps and cooling systems by detritus or large fishes, thus older power generation facilities typically employed traveling screens with approximately 3/8 inch mesh openings. This design excludes sticks, macrophytes (large aquatic plants) and large fishes from being entrained with the cooling water but does not exclude smaller organisms or particles. Bowline Point, Roseton and Indian Point facilities incorporate various types of large-mesh traveling screens, often with improved collection mechanisms and fish/detritus return mechanisms, in their intake designs. The advantage of fine mesh wedge-wire screens is that the small openings prevent small aquatic organisms from being entrained into the circulating water system. Two millimeter slot width has been employed in new facility designs and it is expected that this opening will prevent ichthyoplankton larger than 15 mm from being entrained. In general, fishes greater than 15 mm length are greater than 2 mm in width, and are thus not susceptible to entrainment. The velocity of the water drawn into a system is directly associated with the size of the slot through which it is drawn. The Department imposes a low through-slot velocity to ensure that organisms are not impinged on the screen because they cannot swim away from the intake velocity. EPA recommends a through-slot velocity of 0.5 fps or less, but the Department has issued recent permits for intakes that generally have halve that velocity. 185 Additional protection is afforded by the current from tides or river flow on a wedge-wire screen because it assists in moving organisms away from the influence of the intake. New power generation facilities recently approved in New York are all combined-cycle designs with closed-cycle cooling.1 86 Combined-cycle facility produces two thirds of its power with a gas turbine (which does not require cooling), only one third of the facility requires cooling. This cooling requirement is further reduced by approximately 95 percent by employing closed-cycle cooling. Thus, typical cooling water requirements are 7 to 9 million gallons of water per day (MGD). This volume can be accommodated with two T-shaped sets of cylindrical screens six feet in diameter with 1 mm slot openings, with through-slot velocity of 0.2 feet per second. 185 Athens Interim Decision. 186 Athens Interim Decision. Page 82 of 93

In contrast, a single-cycle power generating facility using once-through cooling, such as Roseton Generating Station, requires a maximum of 926 MGD for cooling at full flow operation (less at efficient flow). For such a once-through cooling system, even with larger screens at higher intake velocities, a great number of wedge-wire screens would be required to supply the necessary cooling water; engineering challenges, higher costs and loss of generating capacity would likely result. Fish Barriers Since the preparation and filing of the DEIS in 1999, a new technology for eliminating aquatic organisms from a cooling water intake structure has emerged and been permitted by the Department. The technology is known generally as an "aquatic filter barrier" (AFB); the Gunderboom Marine Life Exclusion System M T (MLES TM ) is the system which has been deployed, studied and permitted in NYS. Despite its name, use of the MLESTM is not restricted to marine systems. The MLES TM is a semi-permeable fabric barrier which surrounds an intake structure and allows water to enter while excluding most very small particles, including aquatic organisms. Additional components of the MLESTM include: the structures necessary to maintain the barrier in place, such as anchors and floatation; a cleaning device; monitoring equipment; and other miscellaneous equipment as necessitated by the specific site conditions. Because the system is flexible, it may be shaped to follow desired water depth or to increase surface area. The barrier may be constructed in sections, allowing easier maintenance, installation and retrieval. At present, only one company, Gunderboom, has a patent to construct this type of barrier. Thus, an MLES TM is commonly referred to by the "Gunderboom" trade name. Gunderboom MLESTM, alone and in combination with other technologies, have been determined to be BTA at a number of facilities on the Hudson River, and requirements for installation have been written into the SPDES permits. Those with MLESTM requirements include the new electric generation facilities at Bowline Unit 3 (700 MW combined cycle) and Bethlehem Energy Center (750MW combined cycle). The Empire State Newsprint Project, a 500 MW combined-cycle facility in Rensselaer, New York, was issued a draft permit for an MLESTM in 2001. Lovett Generating Station Units 3-5, an existing facility with a 450 MW generating capacity, was issued a SPDES permit which included an MLES TM in February, 2003. The Bowline Unit 3 MLES TM may generally be described as a straight line fabric screen, 137 feet in length and 27 feet deep, that allows 7.5 MGD of intake flow (maximum). Flow-through velocity is predicted to be approximately 0.004 fps with a flow rate of approximately 1.4 gallons per minute per square foot. An air-flow backwash system, strain gauges, water level monitors, and special bottom sealing fabric are required as part of the system. Seasonal deployment of the MLES Tm, from February 15 through September 30, will allow protection during the reproductive seasons of major Hudson River fish species. The Bethlehem Energy Center facility will employ a different MLES TM design, yet still use Gunderboom fabric material as the principal screening device. A 16' by 145' rectangular H-pile and sheet pile structure will be constructed to support twelve Page 83 of 93

removable filter panels orientated to the river flow. The structure is sized for a maximum of 8.5 MGD flow with a fabric flow-through rate of 3.1 gallons per minute per square foot. (0.007 fps). Seasonal deployment of the MLES TM from April through August will be necessary for adequate protection to organisms. These filter panels will be removed mechanically for maintenance and at the end of each seasonal deployment; monitoring by the plant operator to ensure water passage, of strain on the panels, and related variables will be required. The SPDES permit issued for the existing Lovett Generating Station requires the permittee to provide information, analyses and plans necessary to install, operate and maintain an MLES TM . It is anticipated that this structure will be a Gunderboom curtain in the river that surrounds the intakes of Units 3,4 & 5. This means the curtain will be subject to tidal influence and will have some movement with river currents and wind. Close attention to operational parameters and maintenance will be required. The permit includes a protocol for operation, maintenance, monitoring, and responses. The draft permit for the proposed Empire State Newsprint Project (ESNP) specifies an MLES TM that is somewhat different from those already permitted. The intake will be constructed a distance into the river along the bottom. The proposed Gunderboom barrier of the MLESTM will necessarily be offshore, too, surrounding the wedge-wire intake screens in an oval shape 90' by 60' and be attached to 16 fender piles permanently installed in the river. This system is designed for a maximum of 9.7 MGD, with a through-screen flow of 0.01 feet per second and a flow rate of approximately 4.0 gallons per minute per square foot through the Gunderboom fabric. The MLES TM would be deployed and operational during the primary fish spawning season in that section of the Hudson River, April 15 - June 30. The Department is working with other facility owners toward investigating this method of aquatic mitigation at other existing generation facilities within New York State where an MLESTM could potentially reduce impingement and entrainment mortality. Acoustic Deterrent System A number of behavioral deterrent systems (e.g. fish hammers, hanging chains, bubble curtains, strobe lights, mercury lights etc.) have been studied by utilities in New York State for reducing impingement impacts at cooling water intakes. High frequency sound is the only behavioral deterrent technology shown to be effective and currently in use as an impingement mitigation technology in New York. The technology is in use at the J. A. Fitzpatrick Nuclear Generating Station (NGS), located on the south shore of Lake Ontario, and has effectively reduced the impingement of alewife at the station. The fish deterrent system, known by the trademark "Fish Startle System", emits a high frequency, broadband sound (122 - 128 KHz) at a source level of 190 decibels. The system has three major components: the integrated projector assemblies (IPAs), the power cable running from shore to intake, and the control panel. The IPAs contain the signal generators and transducers that emit the high frequency, broadband sound which has been shown to be strongly avoided by members of the clupeid family. Page 84 of 93

In 1989, the New York Power Authority, which owns and operates the Fitzpatrick NGS, started developing the mitigation system after learning that high frequency sound evoked a strong avoidance effect in some species of herring. Laboratory testing was successfully conducted on alewife, then a temporary sound system was developed and tested in Lake Ontario in 1991. Preliminary results showed that the number of fish in front of the intake was reduced by 81 to 87 percent when the system was operated. Between April and July 1993, a second full scale test was conducted. Paired impingement samples were collected with the system on and off and compared against impingement samples collected at the nearby Nile Mile Point Unit 1 NGS (control facility). The Nile Mile Point station is a similar sized NGS, with a similar offshore intake structure. The 1993 study reported the overall ,effectiveness of the system to be 84 percent (i.e., an 84 percent reduction in impingement as compared to the control facility).' 8 7 In 1995, the Department determined the acoustic deterrent system to be BTA for minimizing adverse environmental impact at the Fitzpatrick NGS, and the system was therefore incorporated as a condition of its SPDES permit. Because sound at this frequency and decibel level has been shown to be effective for certain clupeid species only (alewife, blueback herring and American shad), the technology by itself has limited application. However, in combination with other mitigative technologies, its application may be more widespread. British researchers have been testing an acoustic deterrent system on a number of species at a nuclear generating station in Belgium since 1997. The effectiveness of the system is stated to vary among species, due to species-specific hearing sensitivities and the levels at which a species will react to a sound stimulus. System efficiencies (deflection of fish) from 21 percent for flatfish, to up to 98 percent for herring are reported.188 This work is promising if it proves to be effective over a wide range of species. 187 Ross et al, 1996; Radle et al, 2003. 188 Maes et al, 2003. Page 85 of 93

Mitigation - 8. The DEIS significantly overstates costs and energy impacts of closed cycle cooling. A discussion of cooling tower design and operation was presented in Section VIII and Appendix VIII of the DEIS. The Department requested ESSA Technologies, Ltd., to review these analyses. This work was performed by D.B. Grogan Associates, Inc. and is included in Appendix V to this FEIS. The information presented in the DEIS regarding cooling tower design and cost estimates is generally reasonable, based upon the assumptions used for this analysis. In order to determine BTA for individual sites, these assumptions should be modified or expanded to present further site-specific cooling tower alternatives which will result in different construction and operational costs, as well as different environmental impacts. Such additional analyses should include: tower designs based on a variety of wet/dry bulb scenarios; wet towers; a variety of tower fill and nozzle scenarios modified to increase operational efficiency; pre-treatment of cooling tower makeup water; and historical operation information from large, existing wet/dry (hybrid) systems. The different closed-cycle cooling alternatives each result in different environmental impacts, including land use, aesthetics, fogging, evaporative losses, drift impacts, composition of the blowdown discharge, and thermal effects on the river. Energy efficiency, too, varies among the cooling technologies. For example, wet/dry cooling tower systems create a larger parasitic load when compared with wet systems. This results in a need for replacement power from other facilities whose air and water emissions may have an adverse environmental impact. Costs of both construction and operation of closed systems are a concern when analyzing cooling system alternatives. The operational costs have been presented in the DEIS, but D.B. Grogan Associates, Inc. points out that the cost of lost electric generation may be significantly different in the present era of power deregulation and may be seriously underestimated in the DEIS.1 89 Alternative designs that minimize this loss would significantly change the cost projections. A recent EPA update, published on March 19, 2003, concerning 40 CFR Part 125, Proposed Regulations To Establish Requirements for CWIS at Phase II Existing Facilities;Notice of Data Availability; ProposedRule, provides additional information on the cost of connecting a new facility to a closed-cycle system. It noted that the period of time for interconnections to be made for installations at existing facilities should be increased from EPA's earlier estimate and could require up to seven months at nuclear facilities. This could significantly increase the cost of closed-cycle systems unless very detailed planning and construction schedules are carried out to expeditiously complete this activity. Other revisions in EPA's analysis, however, show that compliance costs may actually be lower regarding energy penalties than originally forecast. 189 Grogan, 2000. Page 86 of 93

Mitigation - 9. DEIS alternatives and proposed action do not present a fair picture of available alternatives. The Department concurs strongly with this comment. As discussed in the "Mitigation and Alternatives" section earlier in this FEIS, based on the more specific descriptions of newer technologies and recent advances in established technologies discussed in preceding responses, and on discussions in the original DEIS, including DEIS Sections VII and VIII and Appendix VIII, the Department contends that a range of alternatives exist from which site-specific aquatic resource protection programs can be developed which will meet the requirements for BTA. Furthermore, the Department maintains that some of the most promising approaches for existing plants like these three Hudson River facilities will be in combinations of technologies, or technologies combined with improvements to management systems. Page 87 of 93

Other Topics - 10. The DEIS needs to consider effects of New York's recent conversion to a competitive energy market, take the State Energy Plan into account, or impose parity among facilities. The concept of parity, or leveling the playing field between two or more separate holders of the same type of permit, is not a Department policy per se; nor is it required in law or regulation. For each SPDES permit application that includes a cooling water intake structure, the Department must determine whether the location, design, construction, and capacity of the cooling water intake structure reflects the "best technology available" (BTA) to minimize adverse environmental impact.' 90 The Department makes each BTA decision on a case-by-case, site-specific basis, without necessarily applying the technology(s) or methodology(s) to minimize impacts between separate facilities in a rote manner that supports comparisons." To make a BTA decision, the Department must assess the proposed action (issuance or renewal of a SPDES permit) against the environmental impacts (direct, indirect and cumulative) and determine whether the applicant's proposed method of addressing impacts outweighs alternative methods. This is necessarily a site-specific endeavor that requires examination of technologies having the potential to "fit" the facility and minimize adverse impacts to the extent warranted by the environmental harm in the source water body. A particular mitigative technology may not produce comparable reductions of impacts between two otherwise comparable facilities. Furthermore, for any particular mitigative technology a success differential is likely to exist between facilities with different types of generation systems, CWLS, and/or cooling systems. Mandating parity between existing facilities and new facilities subject to BTA determinations would require that an agency be able to resolve inherent difficulties and numerous issues, such as: (a) environmental impacts may not be the same, (b) construction, operation, and maintenance costs may not be the same (even using the same technology), (c) water bodies may be different, (d) public reaction to the project and/or perception of the need for minimization of impacts may be different, and (e) impacts to the State's energy capacity may be different. Such a mandate would also limit a decision maker's flexibility to prescribe BTA remedies within the boundaries of the statute, which does not require parity between facilities or BTA decisions. In cases where the issues listed above are not present, in other words, where there is a strong basis for comparison between facilities, it is reasonable to expect that similar technologies and associated costs would be involved in prescribing a BTA remedy. However, this does not necessarily translate to "parity" because it is more likely to occur between the same types of facilities (i.e., between existing facilities or new facilities but not between an existing facility and a new facility). The 190 33 U.S.C. §1326(b); 6 NYCRR §704.5. 191 Athens Interim Decision Page 88 of 93

distinguishing issues listed above as examples are more likely to create discrepancies that interrupt attempts to level the playing field between or among separate BTA determinations. Parity thus does not present itself as a clear component of mitigation remedies in making a BTA determination. That does not prevent a decision making agency from assessing whether the level of costs imposed on an existing facility can generally be measured in terms of costs of mitigative technology installed by other (new or existing) facilities. However, the apparent physical, engineering discrepancies between an existing and a new facility and the potential biological differences between source water bodies militate against direct comparisons of such facilities. In conclusion, parity is not defined in the context of making a BTA determination. Absent a policy or administrative or judicial decision which identifies an acceptable equation for leveling out inherent discrepancies, the differences between existing and new facilities (and, potentially, the source water bodies) present significant obstacles to imposing parity to make newer, less polluting facilities cost competitive with older facilities. Page 89 of 93

Other Topics - 11. Radiation discharges are not discussed in the DEIS, but should be. Under the Atomic Energy Act of 1954 (AEA/1954), authority to regulate nuclear discharges is reserved to the federal government.1 92 Discharges of cooling water from Indian Point Units 2 and 3 are regulated by NYS as SPDES discharges to the extent they contain effluent substances regulated pursuant to 6 NYCRR Part 703. Because Indian Point is a nuclear power generating facility, its construction, operation, and maintenance are regulated by the federal Nuclear Regulatory Commission(NRC), pursuant to the AEA/1954. In 1962, the Atomic Energy Commission (AEC), the NRC's predecessor agency, and then-Governor Nelson A. Rockefeller, executed an "Agreement . . . for Discontinuance of Certain Commission Regulatory Authority" (Agreement). Pursuant to that Agreement the AEC discontinued its regulatory authority over certain radioactive materials ("byproduct materials, source materials, and special nuclear materials in quantities not sufficient to form a critical mass") so that NYS could apply its own licensing program to those substances. However, the AEC retained its licensing authority with respect to, among other things, the construction and operation of any production or utilization facility, including nuclear power generation facilities. Consequently, radioactive releases or discharges from nuclear power generation facilities are regulated, today, by the NRC, not NYS. Under the authority of the AEA/1954 and 10 CFR Part 50, the NRC issues licenses and license extensions to nuclear power generating facilities and regulates any releases of radioactive material from licensed facilities. The current NRC licenses for Indian Point Unit 2 and Indian Point Unit 3 expire in 2013 and 2015, respectively.1 93 The New York State SPDES permit for Indian Point Units 2 and 3 will control effluent discharges as to all substances controlled by the regulations set forth in 6 NYCRR Part 703 that are not otherwise controlled by the federal NRC authority in 10 CFR Part 50. Thus, the Department does not have the authority to require a SPDES permit renewal application to identify discharges that do not fall within its SPDES jurisdiction. The 1962 Agreement fostered the creation of a licensing program at the state level for limited purposes where NYS had demonstrated to the AEC that sufficient technical expertise had been developed with regard to a short list of regulated substances. It bears repeating that in 1962, NYS did not undertake to acquire the AEC's authority to license nuclear power generation facilities or any radiation releases or discharges that could be associated with them, nor does NYS presently have or seek to develop the expertise necessary to administer such a licensing program. 192 Atomic Energy Act of 1954, 42 U.S.C. 2021; see §2021(c)(1). 193 Entergy Nuclear Indian Point 2 and Entergy Nuclear Indian Point 3, operators of the respective nuclear generation plants, have stated in the media that they expect to begin the process of NRC license extension in 2006. Department staff understand from an independent inquiry to NRC staff that the 2006 date projected to start license extension is a reasonable one. Page 90 of 93

As noted above, New York State's SPDES permit renewal process is entirely separate from the federal NRC license extension process. However, the Department does have a role in the NRC license extension process. Because these facilities discharge cooling water into navigable waters of the United States, the Department's role in the NRC license extension proceeding will be to process and issue or deny the licensee's application for a state water quality certificate, pursuant to §401 of the Clean Water Act194. Obtaining a state water quality certificate is a prerequisite to extending an NRC license. For the NRC to make a decision to grant or deny license extension, Entergy Nuclear Indian Point 2 and Entergy Nuclear Indian Point 3 will need to deliver a NYS water quality certificate to the NRC applicable to both Units 2 and 3. In considering whether to issue or deny a water quality certificate for Indian Pont Units 2 and 3, the Department will apply the water quality standards set forth in 6 NYCRR Part 700, et seq. In light of the foregoing, concerns for possible radioactive releases in the cooling water discharged from Indian Point, or concerns for possible health effects from radioactive emissions, should be addressed directly to the NRC, not the Department, either as a license compliance matter or in the course of license extension proceedings. Such concerns cannot be addressed in conditions to a SPDES permit. 194 33 U.S.C. §1341 Page 91 of 93

Other Topics - 12. Several commentors expressed generalized opposition to renewal for one or more facilities. These comments, while clearly deeply felt, did not raise substantive issues which can be addressed in the context of the issues and information included in this FEIS. Accordingly, no response or analysis is offered. Page 92 of 93

List of Appendices Please note that appendices are not available on the website. However, you may request one or more of the appendices by contacting Betty Ann Hughes at bahughes@gw.dec.state.ny.us. F-I. Notices and Comments on 1999 DEIS

• DEIS Notices
• Full texts of written public comments
• Public hearing transcripts
• Department comments (on CD; hard copy available on request)

F-II. Text of HRSA F-III. Fourth Amended Consent Order F-IV. ESSA reports

• On CD; hard copy available on request.

F-V. Other cited references and letters not readily available:

• 1991 letters by former Commissioner Jorling to HRSA utility executives
• Article by John Boreman
• Normandeau Associates, Inc. letter/reports
• Simpson letter
• List of Industrial Code 4911 Facilities in NYS
• On CD; hard copy available on request:

              - ASA 2002 (1999 year class report)
              - City of Poughkeepsie Hudson River Temperature Data (spreadsheet)

Back to FEIS Sections Page 93 of 93

EXHIBIT 7 Appendix IV-5 Coastal Assessment Forms ETROO0207

NEW YORK STATE DEPARTMENT OF STATE COASTAL MANAGEMENT PROGRAM Federal Consistency Assessment Form ( ,applicant, seeking a permit. license, waiver. certification or similar type of approval from a federal'agency which is subject to Ij New York State Coastal Management Program (CMP, shall complete this assessment focm for any proposed activity that will c-cur within and/or directly affect the State's Coastal Area. This form Is Intended to assist an applicant In certifying that the proposed activity is consistent with New York State's CMP as required by U.S. Oepartment of Commerce regulations (15 CFR 930.57). It should be completed at the time when the federal application is prepared. The Department of State wiUluse the completed form and accompanying Information in its review of the applicant's certification of consistency. A. APPLICN

1. Name: Central Hugdson Gas & Electric Corporation (pleae print)

2. Address: 992 River Roadi, "Newburgh, 1Y _ 12550

3. Tclephom: Area Code I (914)

( 562 - 5757 B. PROPOSEO ACTIVITY

1. Brief description of actlity, Reneval of State Poliutant Discharge El.mizutiou System (SPOES) perm:Lt for Roseton Generating Station

2. Purpose of actlvlttc sase as above

3. Location of activity:

Orange 992 River Road 9eerbursh

           %                    County                              City, Town or Village                                   Street or Site Deacription
 ---.  "     4. Type of fedend penrstlcense required:                           NISPDFDS Pergit 5;   Federal application number, if known:

6. If a state petmldflcen*ae was Issued or Is required for the proposed activity, Identify the state agency and provIde the application or permit numtber, if known; ]Hew York Stat-e Departent of F-nvriozseutal Coneryvation C. COASTAL ASSESSMENT Check either -YES- or "NO' for each of the following questio*n. The iunbeus following each question refer to the policies described In the CMP document (ewe footnote on page 2) which may be affected by the proposed activity.

1 Will the proposed activity Mslt In any of the following:

a. Large physical change to a site within the coastal ara which wig require the preparation of an env*ro*ranetal Impact statement? (11.22, 26, 32, 37. 38. 41. 431 ....................... . JL

b. Physcal altenran of more than two acres of land along the shoreline, land under water or coastal waters? (2. 11. 12, 20. 28, 36. 441 ............................................... .. x c4 Revtalzadoredevelopnent of a deteriorated or undenrtllized waterfront site? (1) .............. T

d. Reduction of existing or potential public acces to o along coastal waters? (19.20) ............ I

a. Adverse effect upon the colmmrclal or recreational use of coastal fish resouress? (9,10) ............

f. Siting of a fixity essential to the exploration, development and production of energy re*so s in coastal watr or an the Outer Continental Shelf? 129) ........................ X

g. Siting of a faclity essential to di generation or tansmisaion of energy? (27) ................. JL

h. lfinrnf excavation, a dredpv activities, or 1he placement of dredged or fib material in co,, at waters? (15. 35) ....................................................... ... .

I. Discharge of toxics. hazardous substances o othr pollutants Into ceastl waters? 18. 15. 35) ..... J. Draining of stormwater runoff or sewe overflows Into coastal watcrs? (33) .................. X

k. Transport. aroage, treatment. or disposal of solid wastes of hazardous materials? (36, 3S) ........

L Adverse effect upon land or water uses within the State's sma harbors? (4) ................. x

2. Wil the proposed acivity ulff= or be o. ed In. on, or ad.acent to any o1 tht following:

a. State designated freshwater or tidal wetland? (44) .................................... .X

b. Federally desIgnated flood andfor statedsignated erosion hazard area? (11. 12.174............. x

c. State deslgnated signincant fish andor wildlife habitat? (7) ............................. X

d. State designated significant scenic resource or area? (24) ............................... x

e. State designated Important agricltural lands? (26) ...................................

f. Duach, dune or bm ider Wand? 112) ..............................................-

a. Mar potsa of Albany, Buffalo, Ogdensborg. Orwego or Now Yark? ( ...................... - .-

h. Stae, county, or local park? (19, 201 ............................................ _X-I. Histori, resource Bated on the Natdonal or State Regis'ter of )4stedo Places? (231 ............... .1 ETROO0208

a. watcritonL SaLOI 1G C*. & ...........................

                                              .SI

b. Provision of new public services or Infrastructure in undeveloped or sparsely populated sections of the coastal area? 15) ................................................ -

c. Construction or reconstruction o flaood or erosion control sttuctur? 113. 14, 161 .............

d. State water quality permit or certillcation? 130, 38, 401 . . . . ...

a. State air quality permit or certification? (41, 43) ....................................

4. Wil the proposed activity occur ývihin and/or RI!tZ an area covered by a State approved local waterfront revitalization program? (see policies in local program document').....................

0. ADDITIONAL STEPS I If all of fth questions in Section C are answered 'NO'. then the applicant or agency shall complete Section E and submit the documentation required by Section F.

2. If any of the questions In Section C are answered 'YES', then the applicant or agent is advised to consult the CMP, or where appropriate. the local waterfront revitalization program document'. The proposed activity must be analyzed In mor detail with respect to the applicable state or local coastal policies. in the space provided below or on a separate pagelsl, the applicant or agent shall: is) Identify. by their policy numbers, which coastal policies are affected by the activity (ib) briefly assess the effects of the activity upon the policy; and, (c) state how the activity is co*sistent with each policy.

Following the completion of this written assessment, the applicant or agency shall complete Section E and submit the documentation required by Section F. E. CERTIFICATION The applicant or agent must certify that the proposed activity Is consistent with the State's CMP or the approved local waterfront revitalization program, as appropriate. If this certification cannot be made, the proposed activity shall not be undertaken If this certification can be made, complete this Section.

    *The proposed activity compiles with New York State's approved Coastal Management Program, or with theappicable approved local waterfront revitalization program. one will be conducted In a manner consistent with such program.'

Appicant/Agent's Name: Celtral Thudson Gas & Electric Cor'poration Address: 992 River Road Noew burh R I ?-V 1NY Telephone: AreaCode C (914) 562-5757 Appfi~canriAgent's Signatre: k. LIPn , ý5( On. Date:-~ /eA F. S*.JBMISSION REQUIREMENTS

1. The applicant or agent shala submit the following documents to the New York State Department of State, Dlvision of Coastal Resources and Waterfront Revitalization. 162 Washington Avenue, Albany, New York 12231.

a. Original signed .foarm.

b. Copy of the completed federal agency application.

c. Other available information which would support the certification of consistency.

2. The applicant or agent shall also submit a copy of this completed form along with his.4ser application to the federal agency.

3. If there are any questiois regarding Ih submlisslon of this form, cantact the Department of State at (518) 474-6000.

 *These state and local documents are available for inspection at the offices of many federal agencies, Department of ,vronrmental Conservation and Deparmnit q*iState regional offices. an the approprirat regional and county plannin ag fens. Local program documents are also available for Inspection at the offices of the appropriate local government-FCAF Revised 12/6/93                                                           .2-ETROO0209

NEW YORK STATE DEPARTMENT OF STATE COASTAL MANAGEMENT PROGRAM Federal Consltency Assessment Form A appilcant, seeking a permit. license, waiver. certli(catl or atsilWr type of approval from a federal agency which Is subject to the New York State Coastal Management Program (CMP. shll complete this assessment form ("any proposed activity that will occur within and/or directly affect the State's Coastal Area, This form Is Intended to assist an applicant In certilying that the proposed activity Is conzistent with New York St1te's CMP as requtred by U.S. Department of Commerce reg Utions 1r CFft "- 930.57). it should be completed at the time when the federal application Is prepared. Tha Department of State will use the completed form and accompanying Information in its review of the applicant's certification of consistency. A, APPUPC!f

1. Name: ORtA?**. n Ir"rrA*T TVTT.T1'---'7_

Iplease print

2. Addrs: .. CN - HIMZ PLAZA, PZAMr 8IV2, NEW YMR 10965

3. Ttlephon Are& Code I I (914) 5'77-2989 B. PROPOSED ACTI&lVY

1. Brief d:escrpt*on of acdlvitr "REbOOL OF STA~rE FOI17M8tT D C ]E~aNIcN N Sys-(SPOEM Fti B**mqMLD- ErB-=C QMAZM S, CN

2. Purpose of activity: 'SAMEt AS AB=E

3. Locatln of acivity."

CWmUA VI1yPTE ow W. HAViRo W SAreNt AVE. county City. Town or Village Street or Site Description

4. Type of federal peafslitAiomma reure' S. Federal application tunrnber, if known:

8. If a state penusMtlenae was Is*ued or is required for the proposed activity. Identify the atate agency and provide the application or pernmit number. If known.' NWi Y1OMS'71M DMP.R OF gMMRR'AL gZRMAIý i C. COASTAL ASSESSMENT Chedk either 'YES' or *NO* for each of the following questions. Th. numbers followin, each question refer to tf policies described in the CMP document (seefootnote on page 2) which may be affected by the proposed activity.

A. WIl tiemproposed activity LLWlt In any of tie following:

a. Large physical change to a site within the coasta area which will require the preparation of an environmental impact statement? (11.22, 25. 32, 37, 318,41, 431 ...................... . x

b. Physical alt*ration ot more than two acres of land along the shorelne, .land tnder water or coastal watera? (2. 11. 12. 20. 28, 36. 44) ............................................. A.

4c. Revitiligstonhedevelopavent of a deteriorated or underudllzed waterfront site? (ll .............. . .. X

d. Reduction of e.*slino or potentdia public aee*s to of along coastal waters? 119, 20) ..............

e. Adverse affect upon the coenmercial orrereational use of coastal fish resources? 19,101

1. Sidn of a facilty es*snhlal to ti* eplorstion, development and production of energy resources In coastal waters or on t* Outer Continental Shelf? 128) ....................... X

g. Siting of a falcty essential to the generation or transmison of enargy? 127) ................. . -

I, Mining. excavation, or dredg activities, ot the placement of dredged or fill material In coastal waters? (15, 35) ..................................................... L Discharge of toodes. hazardous substances or other pollutants Into coastal waters? (, 15.35) . .

1. Drab" of stornwator runolf or sewer overflows Into'coaxtal waters? (33) ....................

k. Tranport, stroage teasent,a or disposal of solid wastes or hazardous materiaIs? 136, 391 ........ X L Adverse effect upon land or water uses within t.e State's small harbors? (4) .................. . - _

2. VWil the proposed activity affect or be loated in, on, or adjacent to any of the following:

a. State designated freshwater or tidal wetland? (44) ....................................

b. Federally designated flood andfor state designated erosion hear~d urea? 111 12. 17J1........._

c. State designated slinificant Ml wildlle halltat? M ....................

ornd" I } *

• __

  "..           d. State designated slgnlflcant scenic resource of wea? (24) ................................                                     -      L

c. State designated Important aunssiura lads 126) .................................... _

f. Beach, dune orbae elad? (121 ................................................ ._.

g. Major ports of AJbany, Buffalo, Ogdenbrg0.Osweio or New York? (31 ...................... - X

                   . State. coruty, oto ,'pakIe 119, 20) ..............................................-

L Historic resource fisted arnthe National or State Register of i-storc Places? (23) ...............

                                                                                  .1' ETRO0021 0

a, Watcrfhont site? Q2. 21. 221 .......... ib. Provision of new public services or Inrastruciure In undeveloped or sparsely populated sections of tho coastsl area? 15) ..................................-.......... ........

c. Construction or reconstructlon of a flood or eto*l ar control structtat? 113, 14,18) ..... . .

d. State water quality permit or certfflcation? (30, 38, 40) .............. *'................ _

a. State air muallty permit or cesificatlon? (41. 43) .....................................

  .4. Will the proposed activity mK..whffl.and/or aln                      an area covered by a State approved local waterfront rcvftalzatlon program? (see policies In local program document').....................-

0. ADDITIOALS1TEM

1. if adlof the questions In Section C are answered "NO', then the appnlcant or agency shall complete Section E and submit the documentation required by Section F.

2. If any of the questions in Section C aweanswered "YES', then the applicant or agent Is advised to consult the CMP. or where appropriate, the local waterfront revitalization program document'. The proposed activity must be analyzed In more deta with respect to fth applicable state or local coastal policies. In the space provided below or on a separate page(s),

the applicant or agent shall: (a) Identify. by theJi policyrnumbers, which coastal policies are affected by the activity, (b) briefly assess the effects of ti' activty upon the policy; and, (c stabe how the activity Is consistent with each policy. Following the completion of this written assessment, the applicant or agency saWl complete Section E and submit the documnentation required by Section F. E. CERTIFICATION The applicant or agent must certify that the proposed activfty is consistent with the State's CMP or the approved local waterfront revitalization program, as appeoprlare. If lis certlfication cannot be made, the proposed activity slfal not be uraken. If this certification can be made, complete tise Secto*n.

   "The proposed actlvltycomplles with New YotkState's approved Coastal Management Program, or with the applicable approved local waterfront revltsization program, aen wit be, tnducted In a manner consistent with such program."

ApplicantlAgent's Ma Name: OPMG AND RCKLD UPWU DC Addresr. M BUM H PIZAM, PFARL RIVER, NEW YORK 10965 Telephone: Area Code I I. (914) 577-2989 ApplicontiAgent's Signarure: ziZ46 v jr 0 Z cDLots: 4/19/99 F. S9UMISSION REOUIIREMENTS

1. The applicant or agent shall submit the following documents to the New Yogic'State Departmnent of State. Divsilon of Coastal Resources and Waterfront Revitalization. 162 Washington Avenue, Albany, New York 12231.

a. Original signed form.

b. Copy of the completed federal agency application.

c. Other avalable Information which wourld support the certification of consistency.

2. The applicant or agent shall also submit a copy of this completed form along with hisihee application to the federal agency.

3. It there are any questions regartdingthe z6bmnlslon of this form, contact the Department of State at 4510) 474-8W.

C.2,c.

                   "AP~aCATIq 2CM A GP2ERM=W                                              MM1TL291   PM=t OR MOM.UA            AND DIDIVIXfL nX=DmNM inn i'wcnM                                 ¶13(3 MElf                               MnM ACT?1 1973- SMMITM M111.9; rEAR121hN CF cME1Ma, NATIZM                                          OZFAMI AND ?ffCWPE~tC AUgM91$ThflCN, YMNncw. ItflI nISanPM                   SEW= Mi wVM'isss:'
$These state and local documents are available for Inspection at the offices of many federal agencies, Department of Environmental Conservation and Departmeint of State regional offices, and the appropriate regional and county planning agencies. Local program documenta are eisa available for Inspection at the offices of the appropriate local government..

FCAF Revised 12/6/33 -2' ETROO0211

NEW *OU STATE OEPATRETET OF STATE COASTAL KRIOMEENT PRQGPM Coastal Assessment Form INSTRcTII*4S (PLease print or typo sLL w-mers)

1. State aencies shalt ca:*pLte this CAf for pr hrCRR. This assesuont is Intendod to sur dSterVinatt1G of significance pursuant to the If it is deterviined that a propsed action assessm*nt is Intended to assist a state agen Section 6WO.4.

2. If any questio In Section C an this (am o is aneered 'yes", twh the proposed action may effect the achievwe'wt of the coastal policies conainrm In ArticLe 42 of the Esecuttve Los. Thus, the action soijtd be analyzed in mow deter( and, If necessary. modified prior to either (a) making a certification of corsistency pursuant t* 19 NC:RR Part 600 or, (b) making the findings re*ired under SEOR, 6 NYCtR. Section 617.9. if the action Is Ona for hi.Ach anenMromtaL tImact statement Is being prepared. if an action cannot be certified as consistent with the coastaL policies, it shalL not be undertaken.

3. Before answering the questions In Section C, the preparer of this form shouLd review the coastal policie.

contained In 19 KNCRR Section 600.5. A pr aed action should be evaliuated as to its significant beneficial mid adverse effects upn the coastal area.

1. DEB IPTIOL( Of PRIOPSE. ACTION

1. Type of state agency action (check appropriate response):

(a) DirectLy undertaken (e.g. capitaL construction, ptanning activity, agency reguLation, Lard tronsaction__ (b) FtnanciL "astae=*e (e.g. grant, Lot , siuhidy_ (c) Pernit, licene. certification X

2. Desribe natu ande tent of ction: Renewal of -xijstina State Pollutant1D .te.har-g Elimination Svstem Permit for the Indiani Point Station _Units 1,,2 %.3

3. L=cation of action Westchester Buchanan Indian Point Station county City, T"n or V1i lae street or site Decription

4. If an apptlIcatin for the prosed action has been filed with do state agency, the faLlowing infnmatimn Ll be povided:

(a) No of aplican* New York Power A -- itV/Co lsOidate Edson Co. of N York. m '. (b)11i 111 MdLdgreau: 123 M2,ingy4 Whit=-Pa D1 mnvje iS lk.4 1fl 11 (C) Yolept=e 1,filb.o AM Coe( 3U

                                                        '6        62911 (d) state agency al          tcation nu*ber:

S. WitL the action be directy undertaken re ui reuding, or approval by a federaL agency? Tes _ to y If yes, which federal agency? C. WASTAL ASSESSUNET (Chck either "Tes" or "Y4 for each of the foLLtorvi questions)

1. Will the promod action be Located In. or contiguous to. or have a sInitfica.t effect uon any of the resource areas identifead oante Coastal area MW.

ETROO0212

                         .  ..f =-'Mmaraw Stgibide      sgnifconc?                    .................                              ...... .............. o.o....,   -     -
                 ;,rlI (c)  Iamortant    giCsLturaL          Lands? ................................................................                                                       x

2. WSlL the prvposd action hav a simnificant effert upon:

(a) Camincial or recreational use of fish and wiLd*ife resarcea? ............................... bl seenIc quatIty of the 0oastaL uwirn o t? ................................................... - (it DevoLqfMnt Of futur* . or auisting later epandenlt uses? ..................................... - (d) operation of the State's major p**ts? ........................................................ Wml L aid water use within the Stat*'s wail hartcr? ........................................ _- (0 Existing or potentialt piuble rcreetmon opgport*nities? ....................................... X (g) Strncturas. sites or districts of historic. ,woe Logicut or oJiturat. signtfl.carz to the state or ration? ...................................................................... X

                                                                        -1      -

ETROO0213

           . WILL the prmoa-c*tio                          involve or result in any of the foLlowing;

( t) Physlcil aLterstion of v. (2) a-res or tare of land alon* tO shol'ins. land %trer boater or coastal wate s? ..................................................................... X (b) Piysical aLterftlon or five cS) acres or mra Of lard located mLSeoere in the coastal ore"? , ....................................................................................... X (4) Exfp-naIon of existing pubtic services or Infrastructure In uLdaveLoped or Low. density areas of the coastal arms? ................................................................... X (d) Energy facility not SUl*Jmct to Artlcte Vil or V1i1 of the Public Service .b,? ................ X (el Wmiing. excavation. fIlng or dredging in coast&( wsters? ......................... *- .... - - X (M) Reduction of existing or otantialt mbtic access to or aLong the shore? ................ - (g) Sate or chainge In use of state-mad tards located an the shoreline or under water? .......... X (h) Oevetop t within a designated fnend or erosion huzard ara? ................................ K (I) Oeveol- t an a beaeh. diu. barrier isLand or other nrattral fa*ture that provides protectiau against fLdIng or moston? ...................................................... X

           -. WILL the preooad action be locat.*d In or have a significant effect 4mo an area included in an apprOvd Local Waterfront Ravitatlzatiom Prograu? .................................................                                                               X

0. SM ISSION REGUrwItEMS If " quastion In Section C Is ansrred "T"-, ANO feither of the foLlowing two conditions is mnet:

Section 9.1cl) or S.b it checked; Sr Section S.1C) Is cheked ANID8.5 Is answer-d 'Yes"

       ..I'       an one    py of the Copteted Coastl Asesssnt Form shaltL be slbmttted to,
 ",..

Niew York State Oeparte*t of State CastoL nuapment Progrm 162 Washington Avenue ALbany, hew Vork 12231 if assistance or further infoamtIn is meeded to omplete this foes. ptlme call the Oepartmen of State at (516) 474-3642.

f.

• 1O AWITIONAL lNIOlTION w',e w: John 3. KB11v 1a.tphur. m e. (*914,) 681.-6291+

tlteSe p*int) D. r.ecte RES Ne.~

                                                                                                                  *gW    kPm          ~ý               ~           .

ETROO0214

Policy 7. Significant coastal fish and Vildlife habitats, am identified on the coastal area map, shall be protected, preserved, and vhere practicable, restored so as to maintain that viability habitats. The proposed activity will not affect any state designated significant fish and wildlife habitat. ( ETR000215

EXHIBIT 8 r agency to ap p rove actio n it. m ust m k N A p plicant subm its 1.po ...dae gnycmpee Is a yFo u n on N Does SEQRA Yspositive consistenc'ydetermination byinldg requestto a state agenc in the EIS"th e action's consistency  : w ith the atefpoe,.. Y l permit ), or a state for

                                               "

ap r v lCeg ,A in thera? n oa e "c -1.1a/,,C .i F oastal Assessment Form wh A F requ ire an EIS for the Proposed applicable coastal policies and - "mak ling].gec agnyitefprpssae" (C F) nwre iton?.*, written finding that the action is consistent aplcbeplcis"tfrhin1 YR withG toundertake an action. Agency provides on the CAF a For agency'to approve action, it must make a positive I etfcto htsc cinwl o usatal and extent of the action and No consistent\, hin ertf c thio a at such aciomnt ny'ofth o a sta ntfa~ wil licie forw ards copy to NY SD OS, determ ination req uired urmnso 9NCR604b( -4 r ai "permit action" that does not of the proposed action ti e srf1 Y R 0.() )-4ars1iid involve Federal review, funding, or. approval State and Federal // Proposed acfio or. Con ro es en y evi w is esauthoriýzation has been ConPis enc oce R vie se reviewed bny an authorized state

                                                                                                                                                                                                                                                                   *agency and determined to be/

policiesJ consistent with CMP I) ( Appbcanl

                                                                                                                                            ~~Applicn                   crifie tthe.....aey...

in the ApiatfederalIe~ aIsthe proposed Federal Consistenic submits request tivity "listed" in Assessment Form tafdrlaeccI h euse Fdrlaec a su No the CMtP. or has Ys ("FCAF") that the for feealageoncytoizto the authorizati .on pproved a proposed activity (e.g., a license to reea"o"mjrNA request by complies with [he condluct an amnmn"udrspecific policies of act ivity affecting 1 F93.1r-()NYDStreiwenforceable the CM IPand will b the activi ty.? the coastal zone. conducted in a marter YscnitnwihteCI JDoes NYSDOS (or its NYSDOS (or its designee) ipplicant'.s cortifica tion, N oapplican t's certification, e ither Applicant g i% es NYSDOS

• either expressly' or by ex:presslyv by operation of a cop}, nf its consistency New York', denial of law from failure to issue a certification and the from N ow Is [herenewal or major state tim ely objection or "re.lev ,ant "necessa rydata and ypermoits,"

inomto"rqie within the N issuance of "relevant ork's amendment a "federal Yes informatnon reqriodd byteris St t er i s license or permit," as 15 C FR 9 . 10 .5 8 a n d C PAP i - t pe i d t ha t t er m is d ef i ne d i n NYSDOS (ra deosigne state agency, it t Yes No appoints) review~s the -

                                                                                           , r for up     to No c nsisencycertification si     otsFedera                                agency may not issue the deerminaion  required                                                                                                                          u t ho r iz at io n u n e s t e         a.ev o fo r i ssu a n c o f th e fe de r a l      9 authrizaionCommerce                                                                                                 overrides the objection authorzatio

EXHIBIT 9 DEPARTMENT OF STATE George E. Pataki Division of Governor Alexander F. Treadwell Coastal Resources Secretary of State 41 State Street Albany, NY 12231-0001 I April 3, 2001 Mr. Samuel J. Collins Director Nuclear Regulatory Commission Washington, DC 20555

Dear Mr. Collins:

Pursuant to federal regulation at 15 CFR Parts 930.53, 930.95, and 923.84, enclosed please find proposed routine program changes to the New York State Coastal Management Program. A routine program change is a further detailing of a State's approved management program that is the result of implementing provisions approved as part of a State's approved management program. The attached public notice describes the nature of these program changes and to whom your comments on whether or not the proposed changes constitute a routine program change should be sent. Please take particular note that the lists of federal agencies' activities affecting land and water uses and natural resources in the coastal zone of New York State has been updated. If anyone in your agency has any questions please call Charles McCaffrey at (518) 473-3368. Sincerely, George R. Stafford Director Enclosure c: C.McCaffrey Voice: (518) 474-6000 Fax: (518) 473-2464 E-mail coastal@dos.state.ny.us www.dos.state.ny.us/cstl/cstlwww.html (~jfl I IS

New York State Coastal Management Program Routine Program Change Table of Contents I. Introd uction ................................................................... 1 II. Text of Program Changes ........................................ . . . . . . . . . . . . . . . . . Changes to Policies and their Means for Implementation ........... ................. Change to Special Management Areas ........................... ... . . ..... ... . .. 16 Change to Federal Consistency Procedures ....................... .. ... .. .. .... . .. 2 1 III. Routine Program Change Analysis ................................ ..... . .... .. .... 36 Uses Subject to M anagement .................................. .. .. .. ...... ... . 4 1 Special M anagement Areas .................................... .... ............ 36 B ou ndaries ................................................. . . .. . . . . .. . . . . ..41 Authorities and Organizations ................................. . . .. . . . .. . . . . . .. 41 Coordination, Public Involvement & the National Interest .......... ................ 42 IV. Summary of Additional or Revised State Authorities ................. ................ 43 V. P ublic Notice ................................................... ................ 47 VI. Text of Additional or Revised State Authorities ..................... ................ 48

III. Routine Program Change Analysis Introduction The following analysis describes why the proposed program changes are not amendments as defined by section 923.80(d). The analysis is organized by the five coastal management areas, a substantial change to which would constitute a program amendment. For each of these coastal management areas the proposed changes that relate to that management area are presented in the following order: changes in policy; changes in authorities; and changes in procedures. 1, Uses Subject to Management A. Coastal Policy Changes The following program changes to policies are not changes in uses subject to management. They are minor changes in the management of uses already subject to the program, and minor changes to the laws governing the siting of major energy facilities. Policy # 2 The new paragraph after the 2 nd paragraph, page 11-6-9 was added to reflect the addition to the Executive Law of a stipulation that water dependent activities not be considered to be private nuisances The purpose of adding this legislation was to protect water dependent activities from the pressures associated with the subsequent development of nearby non-water dependent activities. This addition results in a minor change in the management of uses subject to the coastal management program. It advances the existing policy of facilitating water dependent uses. The addition to the 3Yd paragraph, page 11-6-9 incorporates a definition of water dependent uses as that term is defined in the amendment to Section 911 of the Executive Law ( Chapter 791 of the Laws of 1992). The term "water dependent" wasn't defined in the CMP, rather, examples of uses and facilities determined to be water dependent were enumerated. The addition of this definition results in a minor change to the management of uses subject to the program in that it clarifies the meaning of the term, water dependent uses, consistent with the program's interpretation of the term over the last 20 years. The replacement of the 2nd paragraph from the bottom of page 11-6-10 contains a revised definition of "water-enhanced uses" which clarifies the original CMP definition, stressing the public benefits of such uses and providing general categories of these uses. This revised definition of "water-enhanced uses" represents a minor change to the CMP's management of uses subject to the program because it merely clarifies this category of uses. The revised definition more accurately states the intent of the CMP as reflected in the examples given and the manner in which the program has interpreted the term over the past 20 years based on the examples. Policy # 3 The additional guideline, 11-6-22, does not change the uses subject to management or their management but merely requires consideration of local or harbor specific information or standards in applying the existing guidelines. State supported port planning generates useful information that should guide decision making. 36

Policy # 4 The additional guideline, page 11-6-18, does not change the uses subject to management or their management but merely requires consideration of local or harbor specific information or standards in applying the existing guidelines. As a result of the Coastal Management Program and additional local government authority local governments have taken a more active role in the management of their harbors. This is generating useful information that should guide decision making. Policy # 20

• The paragraph added following the third paragraph under Explanation of Policy, page 11-6-99:

reflects changes resulting from Chapter 791 of the Laws of 1992 in regard to the construction or reconstruction of structures in, on, or above lands underwater. This change which lists criteria to be used in managing such structures is not a change to the management of uses subject to the program because it merely reflects the language used in the the State's codification of the Public Trust Doctrine which doctrine has been the basis for regulation of these structures. Add a 7"h guideline under Explanation of Policy, page 11-6-102: This guideline follows the legislation set out in Subdivision 7 of Section 75 of the Public Lands Law within which it is specified that State-owned underwater lands may be conveyed, but only in a manner that is consistent with the preservation of such public interests as navigation, commerce, fishing, and access to navigable waters. This change is not substantial in that it also reflects the implications of the Public Trust Doctrine. Policy # 27 Replace the 4"' sentence of the second paragraph under Explanation of Policy, page 11-6-145: This revised sentence updates the policy explanation by replacing Article VIII with Article X. The new article expands and improves on the previous statute in several ways. It broadens the definition of electric generating facility by including any electric generating facility (rather than steam electric only) with a generation capacity of at least 80,000 kilowatts including interconnection electric transmission lines and fuel gas transmission lines that are not subject to review under Article VII of the Public Service Law. Section 163 of Article X institutes a new pre-application procedure whereby potential applicants for a certificate of environmental compatibility and need submit a preliminary scoping document; this preliminary step expands and improves the review of a proposal by various parties and provides advance information about the potential environmental impacts of a major electric generating facility and any measures proposed to minimize environmental impacts. Section 165 of the article mandates that a final decision of the board of electric generation siting and the environment be rendered within 12 months from the date of a determination by the board chairman that an application complies with the requirements of a complete application. This change helps the permitting process to run more smoothly and efficiently; the expired Article VIII process did not include a definite time frame for a decision to be made. These revisions result in a minor change to energy facility siting procedures in that they improve and streamline reviews and evaluations of proposed electric generating facilities in the coastal area Replace the third paragraph under Explanation of Policy, page 11-6-145: Section 166 of this article removes the Secretary of State from the list of parties to a certification hearing, where the Secretary was included on the parties list in Article VIII (now expired). However, the Department of State maintains full review powers when an application for a certificate of environmental compatibility and public need involves a federal approval and concerns the siting of a major electric generating facility in, or which may significantly affect, the coastal area. This revision to the coastal program is a minor change to uses subject to management; the 37

Department of State retains full review power to review the siting of major electric generating facilities in or which significantly affect the coastal area through the federal consistency process. DOS can also request to be a party to a proceeding under Article X. The change in references to the Energy Master Plan is not a substantial change to the program because this provision of the Energy Law was terminated in accordance with the original terms of that legislation. It was replaced by a new Article 6 with similar provisions. Policy # 34 The revision of the Explanation of Policy, page 11-6-167 is not a substantial change to the management of uses subject to the program. The revision is made to more accurately reflect provisions of the Clean Water Act. Policy # 35 Replace the policy statement with a revised statement, page 11-6-169: The original Policy # 35, which covers dredging and dredge spoil disposal, did not include the filling of coastal waters with materials other than dredge spoil. This policy is a minor change in the management of uses subject to the management program because it incorporates an activity that the State has been regulating since before its coastal management program was approved, which regulations are identified as authorities for enforcing this policy, viz., ECL Articles 15, 24, and 25; and because it merely makes explicit, in the context of this policy, the effect of the application of the other 43 policies on the activity of filling on coastal waters. The replacement of the term "spoil" with "material" is not a change but merely the use of the more current term of art. Replace the Fxplanation of Policy, page 11 169: The revised explanation incorporates the addition of filling coastal waters with materials other than dredge spoil, which is a detailing of what is already regulated by a number of existing statutes within the Environmental Conservation Law. The policy explanation also expands the statement "proper siting of dredge spoil disposal sites" to include the "beneficial use of dredged material." B. New or Revised Authorities The following new or revised authorities have not resulted in changes to the uses subject to the management program but in minor changes to the management of uses already subject to management, or to minor changes in authorities for regulating the siting of energy facilities. Amendment to the Executive Law to include a new Section, 922, Comprehensive Harbor Management Plans (Chapter 791 of the Laws of 1992) Section 922 of the NYS Executive Law authorizes local governments to development comprehensive harbor management plans. It does not represent a change to the uses subject to the management program It is a minor change to the management of those uses because it delegates to local government the State's authority to regulate certain activities in water whenever the local government incorporates a harbor management plan in its Local Waterfront Revitalization Program. Specifically subdivision 922.1 allows local governments to adopt, amend and enforce local laws or ordinances to regulate the construction, size and location of wharves, docks, moorings, piers, jetties, platforms, breakwaters or other structures in, on, or above surface waters and underwater lands within a municipality or bounding the municipality to a distance of 1500 feet from the shore . Before this legislation became law, there had been no clear State enabling legislation which authorized all municipalities to regulate all uses and activities occurring in harbor and nearshore areas. The lack of clear legislation hampered the ability of the State and local governments to comprehensively manage activities in harbor and nearshore areas, and to resolve conflicts and issues in these important areas. [he changes resulting from this amendment are not substantial in regard to uses subject to the NYSCMP. The amendment will allow more coordinated management of harbor uses by including their regulation in Local Waterfront Revitalization Programs. 38

Subdivision 922.4 specifies that Section 922 shall not diminish the authority of any municipality pertaining to the regulation of harbors, surface waters and underwater lands granted by other laws, charters, or other instruments. Prior to the enactment of this section some local governments had all the authority granted by this Section and all local governments had some of the authority granted. To protect existing water dependent businesses this subdivision provides that local harbor management plans may not displace conforming water-dependent businesses existing prior to the effective date of this section. Subdivision 922.5 provides that conveyance of interests pursuant to subdivision seven of Section 75 of the Public Lands Law regarding lands underwater and permits issued pursuant to subdivision one of Section 15-0503 of the Environmental Conservation Law must be consistent to the extent practicable with approved comprehensive harbor management plans. This provision is not a substantial change since this specific requirement of consistency would be included in the general requirement that State actions be consistent with approved LWRPs. Amendment to Section 8 of the Public Lands Law (Chapter 791 of the Laws of 1992) This amendment provides for the bringing of trespass charges by the State's attorney general against trespassers over State-owned underwater lands following reports of this activity by the Commissioner of the Office of General Services. Such prosecution will better protect the public's right to use public lands. This represents the further detailing of the State's ability to protect these rights and is not a substantial change to uses subject to management. Amendment to Section 75 of the Public Lands Law (Chapter 791 of the Laws of 1992) Several revisions and additions to Section 75 have been made that have an effect on uses subject to management in the coastal area, but these amendments serve to further refine the NYS Coastal Management Program and are not of a substantial nature. For instance, the amendment provides a new, clearer definition of water-dependent uses(see above) Additionally, the amendments provide for the transfer of jurisdiction over State-owned underwater lands from the Commissioner of the Office of General Services to other State agencies, allows for the protection of the public's interests in State-owned underwater lands when these lands are conveyed by grant, lease, etc., allows the Commissioner of the Office of General Services to collect fees when State-owned lands underwater are conveyed, and provides for the attachment of necessary rules with respect to grants, leases, and other conveyances of State-owned underwater lands. These amendments limit grants of public trust lands and specify the public's interest that is to be protected in any conveyance of underwater or formerly underwater land. They have the general effect of codifying the Public Trust Doctrine. Interagency Memorandum of Understanding (implementing Chapter 791 of the Laws of 1992) In order to facilitate the implementation of this amendment and its requirements, a memorandum of understanding (MOU) providing for a consultation process among various State agencies in regard to the administration of State-owned underwater lands has been established. This MOU has resulted in the development of procedures with respect to leases and other conveyances for use .of State-owned underwater lands to protect the public interest. This agreement is related to uses subject to management within the coastal zone, but is primarily procedural and is not a substantial change to the management of those uses. Amendment to Section 15-0503 of the Environmental Conservation Law (Chapter 791 of the Laws of 1992) This amendment represents a change in the management of uses subject to the management program, but is not a substantial change. It provides that the Department of Environmental Conservation will require the issuance of a permit for the construction of structures in, on, or above waters of the State except for cases where a lease or other conveyance of an interest authorizing use of State-owned underwater lands has been issued by the State. In that instance essentially the same standards apply to the issuance of the lease or other conveyance as would apply to the issuance of the permit. This amendment is also not a substantial change to the management of uses subject to the program because these structures .in the coastal zone are regulated by other provisions of the ECL identified in the CMP as implementing the program, particularly Articles 15, 24 and 25 of the ECL.. 39

Section 915-b of the Executive Law (Chapter 791 of the Laws of 1992) This amendment further refines the CMP in that it specifies that water dependent use activities shall not be considered a private nuisance with the condition that such activities were well-established prior to surrounding activities and that they are neither hazardous nor has disturbance to the enjoyment of surrounding lands been increased. This is a change in the management of uses subject to management, but it is not a substantial change because it further details the existing legislative policy of facilitating water dependent uses. Article 54 of the Environmental Conservation Law (Environmental Protection Act) Through the enactment of Article 54 of the Environmental Conservation Law, the State Legislature established a permanent fund to protect the environment and public health, safety and welfare via the provision of assistance to state agencies, public benefit corporations, public authorities, municipalities and not-for-profit corporations. This financial assistance in the form of grants would help to fund projects such as landfill closure, recycling, parks and protected areas, coastal rehabilitation projects, open space conservation projects, and local waterfront revitalization plans. The funding of such projects within the coastal zone is not a substantial change to the management of uses subject to the management program. It does significantly increase the State's ability to advance plans and projects that implement the State's Coastal Management Program. Enactment of Article 56 of the Environmental Conservation Law (Implementation of the Clean Water/Clean Air Bond Act of 1996 Article 56 of the ECL established a means to implement the Clean Water/Clean Air Bond Act of 1996, which provides funds for clean water, solid waste, clean drinking water, brownfields, air quality, and aquatic habitat restoration projects. Through the Bond Act, several State agencies, including the Department of State, have been authorized to Fund water quality improvement projects that implement management programs, plans, or projects for certain water bodies in New York State, including coastal zone waters. The funding of such projects within the coastal zone is not a substantial change to the management of uses subject to the management program. It does significantly increase the State's ability to advance projects that implement the State's Coastal Management Program. There is a specification in the Act that eligible water quality improvement projects include those that involve waters identified in plans in accordance with Section 1455b of the federal Coastal Zone Management Act. Sections 33-c and 33-e of the Navigation Law (Regulating Disposal) These changes to the State Navigation Law bring State law into greater conformity with the Clean Water Act provisions regarding vessel waste no discharge zones. They establish the process by which the State will designate vessel waste no discharge zones following EPA's assent. They also provide for enforcement of no discharge zones and authorize local governments to establish and enforce a no discharge zone whenever one has been established by the State. While these amendments are a significant advance in enabling the State and local governments to avail themselves of the benefits of improved water quality that can result from a vessel waste no discharge zone, this additional authority is not a substantial change in uses subject to the management program or in their management because it merely establishes the procedures for vessel waste no discharge zones as provided for in the Clean water Act, the provisions of which must be included in the State's Coastal Management Program pursuant to CZMA section 307(f). Article XII-C of the Highway Law (New York State Scenic Byways Program) Added to the NYS Highway Law in 1992, this Article allows the creation of a comprehensive scenic byways program to guide and coordinate State agency, local government, and not-for-profit organization activities to better serve the public interest. An important emphasis of the program is to create a system of scenic byways within the State (especially within the coastal zone), and to recommend actions by the State legislature necessary to implement a coordinated program that will serve the goals of preserving and protecting the State's scenic, historic, recreational, cultural and archeological resources. The scenic byways so designated are essentially special management areas of particular concern within the coastal zone. This is a change, although not a substantial one, in that it charges the 40

Scenic Byways Advisory Board (established through this Article) with the task of recommending standards such as those for operation and management of designated scenic byways to protect and enhance landscape and view corridors; for scenic byway-related signs; and for highway safety along scenic byways. This represents a detailing of existing state standards for highways in New York State.

2. Special Management Areas The Special Management Areas Section (Part II section 8 ) of the Coastal Management Program is revised by adding four new special management areas. This, however, is not a substantial change to the program. Central to New York's program has been the development of Local Waterfront Revitalization Programs. These were identified as one of three special management areas in the original NYSCMP. The four special management areas to be added are a variation of LWRPs. LWRPs .are comprehensive coastal management programs for the entire coastal area of a particular political subdivision of the State. The issues addressed in LWRPs are often intermunicipal in nature or are of a greater priority within a particular geographic area of a municipality. These additional special management areas allow the cooperative and concerted effort of local governments and the State evidenced in the LWRP to be applied to intermunicpal issues and discreet areas within a municipality that may require focused and detailed management.

Other than small watershed plans, the additional special management areas meet the criteria presented in the 1979 Draft NYS CMP Appendix F pp. 1-6 and referenced in the NYS CMP on page IU-8-1. Specifically, "Areas where development and facilities are dependent on the revitalization of, or access to, coastal waters" is the basis for centers for maritime activity special management areas. "Areas of urban concentration where shoreline utilization and water uses are highly competitive ... such areas are characterized among other factors by: ... structural obsolescence ... governmental concern as evidenced by plans, proposal, etc. prepared over the years" is the basis for the waterfront redevelopment areas special management area. "Areas of high natural productivity or essential species habitat for living resources, including fish, wildlife and the various trophic levels in the food web critical to their well being" is the basis for regionally important natural areas special management area. Other criteria on pages FI-6 are also relevant and fill out the principal criteria referenced above. Although these criteria area not restated in the NYS CMP, in the aggregate they were the basis for the LWRP special management area. This revision as described above partially disaggregates that special management area identified in the NYS CMP. The small watershed special management area furthers an important management measure of the Coastal Non-point Pollution Control Program. In addition to identifying the types of special management areas, viz., Centers of Maritime Activity, Waterfront Redevelopment Areas, Regionally Important Natural Areas, and Small Watersheds, to be added, criteria are included to help determine when and where a special management area should be identified and a plan prepared. Plans prepared for these areas would, subsequent to their completion, be submitted as routine program changes or amendments to the NYCMP, either as part of a LWRP, as part of a regional coastal program, or as a stand alone Special Management Area Plan or Special Area Management Plan. Scenic Areas of Statewide Significance and Significant Coastal Fish and Wildlife Habitats, already provided for in the NYCMP, are now included under the rubric of special management areas. This is not a substantial change to the program. 3.Boundaries There are no boundary changes to the NYS Coastal Management Program include in this Routine Program Change. 4_AmthQrtiesacndOrganizations Most of the program changes included in this submission relate to enforceable policies or the state's organization or authorities to implement the CMP. 41

Minor changes to policy statements or guidelines are made to policies 2, 3, 4, 20, 27, 34 and 35. The reasons why each of these changes are not substantial are described in this analysis under I .A. above Uses Subject to Management. Changes in authorities are the result of several legislative enactments subsequent to program approval and regulations implementing them. The following legislative acts are submitted as new authorities. I. Chapter 791 of the Laws of 1992* (codification of the Public Trust Doctrine, harbor management plans, and dock regulation)

2. Article 54 of the ECL (Environmental Protection Fund)

3. Article 56 of the ECL (Clean Water/Clean Air Bond Act)

4. Article X of the PSL (Energy Facility Siting)

5. New York State Scenic Byways Program - Article III -C of the Highway Law

6. Sections 33c and 33e of the Navigation Law (vessel waste no discharge zones)

7. Article 46 of the Executive Law (Long Island South Shore Estuary Reserve)

8. Section 923 of the Executive Law (Long Island Sound Coastal Advisory Commission)

The reasons why the new authorities numbered 1-5 are not substantial changes to the NYS CMP are presented in 1.B above, Uses Subject to Management. New or Revised Authorities. The reasons why new authorities 6 and 7 are not substantial are presented in 5., below, Coordination, Public Involvement and National Interest. In addition to the above changes, the regulations implementing the SEQRA, a key means of implementing New York's program, have been revised. The revised regulations are included with this submission. The changes are not substantial. One change inserts the word 'adverse' before environmental impacts to describe what must be assessed in an EIS. This change avoids the need to complete an EIS for projects whose only significant effects are positive for the environment. Another change modifies the list of Type II actions, these are the minor or ministerial actions which by their nature are not likely to have a significant effect on the environment. Any of these actions which are within the coastal area are still subject to regulatory review under various environmental regulations, such as, the wetland and erosion hazard regulations. Other amendments to the State Environmental Review Act, regulations include additional guidance on scoping the environmental impacts of projects, changes in critical environmental area designation and review requirements, changes to the existing environmental impact statement format, and amendments related to the contents of findings statements. The change to Policy 11 explanation of policy is merely correcting a wrong reference. There are no changes to the state's organization to implement the NYSCMP submitted as part of this program change.

5. Coordination, Public Involvement, and the National Interest Of the program changes included in this submission, three are related to this program approval area.

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The creation of thi Long Island South Shore Estuary Council and the Long Island Sound Coastal Advisory Commission establish regional coastal bodies to assist and advise the Division of Coastal Resources in implementing the NYS CMP in their respective regions. These bodies also provide a mechanism for coordination among the members of the Council or the Commission (see list of members in the legislation). When the regional plans that these bodies adopt or advise on are completed and enforceable those plans will be submitted as separate program changes. These two program changes are not substantial because they add to the array of consultation and coordination between the lead coastal agency and other state agencies, local governments, regional agencies, and not for profit organizations that is provided for in the NYSCMP. Both bodies provide the opportunity for greater public involvement through numerous public meetings. The NYS CMP federal consistency procedures are completely revised. Although program changes to the federal consistency section is a complete substitution, there are essentially only three changes being made. These are: 1) an update of the list of "Federal Activities and Development Projects Likely to Directly (sic) Affect New York State's Coastal Area;" 2) a further detailing and clarification of the information required for the Department of State to assess the consistency of an activity; and 3) provision of a means to expedite the review of minor projects whose characteristics are such that they could not adversely affect the achievement of the coastal policies or would advance the policies. These changes are not substantial. The third change is not substantial since over the past eighteen years, the activities or projects that have the characteristics or meet the criteria set forth in the revised federal consistency procedures have been routinely found consistent with the CMP. This change would reduce the time spent by applicants for federal permits, federal agencies, and the DOS without any adverse effects on the ability to carry out the NYS CMP policies. Under this change, proponents of activities which are determined to meet the established criteria would be notified within 10 days that their activity is an activity that has been determined to be consistent with the NYS CMP and no further review by the DOS is necessary. IV. State Authority Summaries Chapter 791

• Construction of Projects Over State-owned Land Under Water (Chapter 791 of the Laws of 1992)

This act amends the Public Lands Law, the Environmental Conservation Law, and the Executive Law, in relation to requiring a lease, easement or other interest, or permit, for the erection of certain structures or placement of fill on lands underwater and to authorize establishment of comprehensive harbor management plans. The NYS Legislature found that regulation of projects and structures which are proposed to be constructed in or over State-owned lands underwater is necessary to responsibly manage the State's .interest in these lands to protect vital public assets, to guarantee common law and sovereign rights, to ensure reasonable exercise of riparian rights, and to allow for reasonable use of waterways for various public activities. The Act defines water dependent activities to mean those activities which can only be conducted on, in, over, or adjacent to a water body because such activity requires direct access to that water body, and which involves, as an integral part of such activity, the use of the water. Section 75 of the Public Lands Law authorizes grants, leases, easements, and other conveyances for the use of state-owned underwater lands and the ceding of the jurisdiction of these lands in a manner consistent with the public interest in the use of State-owned underwater lands for navigation, public access, and other uses, with due regard for the need of affected owners of private property to safeguard their property. Additionally, transfers of jurisdiction over State-owned lands underwater to the NYS Department of Environmental Conservation (DEC) for the purpose of protecting environmentally sensitive lands underwater are authorized via this amendment to the Public Lands Law. This transfer may take place even if the State agency is not the proprietor of the adjacent upland. The NYS Office of General Services (OGS) and DEC are also given the power to promulgate any needed rules and to charge fees with respect to grants, leases, easements and lesser interests for the use of State-owned lands underwater. The OGS has since adopted regulations regarding conveyances of these publicly-owned lands. 43}}