ML13196A237

Email M. Smith to S. Uttal, Et Al., FW: Entergy-NRC Pilgrim Nuclear Relicensing ESA Consultation

ML13196A237
Person / Time
Site:	Pilgrim
Issue date:	04/12/2012
From:	Matthew Smith NRC/OGC
To:	Balsam B, Logan D, Uttal S, Woodall L Office of Nuclear Reactor Regulation, NRC/OGC
References
FOIA/PA-2013-0135, 50-293 LR
Download: ML13196A237 (53)

Text

Phelps, Steven /

Pheps Steen From: Smith, Maxwell Sent: Thursday, April 12, 2012 8:45 AM To: Uttal, Susan; Woodall, Lauren; Balsam, Briana; Logan, Dennis

Subject:

FW: Entergy-NRC Pilgrim Nuclear Relicensing ESA Consultation Attachments: Bingham Affidavit 3-6-12.pdf; duBois Affidavit 3-6-12 w Exhibits.pdf; Mansfield Affidavit 3-6-12 .pdf; Reply Aff Mansfield 3,26.12.pdf Hi everybody,

Thanks, Maxwell Smith Attorney U.S. Nuclear Regulatory Commission Office of the General Counsel (301)415-1246 Maxwell.Smith(nrc.qov

[NOTE: This email may contain ATTORNEY-CLIENT COMMUNICATIONS or ATTORNEY WORK-PRODUCT. DO NOT RELEASE UNLESS THE COMMISSION DETERMINES OTHERWISE.]

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Message -----

Original From: Meg Sheehan [1]

Sent: Thursday, April 12, 2012 8:30 AM To: Meg Sheehan Cc: daniel.morrisc.noaa..ov; Jones River; Mary Lampert; Susan Reid; Michal Freedhoff; Ken (DEP) Kimmell; Bruce Carlisle; Richard Delaney; curt spaulding; david.websteraepamail.epa.qov; Beth Card; Smith, Maxwell; Anne Bingham

Subject:

Re: Entergy-NRC Pilgrim Nuclear Relicensing ESA Consultation 4 Attachments I

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

Entergy Nuclear Opeartions Inc. )

Pilgrim Nuclear Power Station )

License Renewal Application )

1. My name is Anne Bingham and I am providing this affidavit to detail my knowledge of the records maintained by the United States Environmental Protection Agency (USEPA) in the industrial wastewater division of its Region I offices regarding the permitting of surface water discharges to Cape Cod Bay from the Pilgrim Nuclear Power Station (PNPS) in Plymouth, Massachusetts.

2. 1 live and work at 78A Cedar St. in Sharon, Ma 02067. I was admitted to the Massachusetts bar on January 21, 1985. 1was employed by the Massachusetts Department of Environmental Protection (MassDEPJ from 1985 until June of 2007.

Between 1990 and 1995, 1 was the senior attorney for the Department's Division of Water Pollution Control, responsible to assist staff in permitting and enforcement for ground and surface water discharges to the waters of the Commmonwealth.

3. 1have been in private practice for five years since leaving DEP. I currently represent the Jones River Watershed Association and Pilgrim Watch in matters relating to the impact of surface water intake and discharge from PNPS upon water quality and aquatic life in Cape Cod Bay.

4. Between January 3, 2012 and February 28, 2012,1 spent approximately 200 hours0.00231 days <br />0.0556 hours <br />3.306878e-4 weeks <br />7.61e-5 months <br /> reviewing documents maintained by the USEPA - Region I in the National Pollutant Discharge Elimination System (NPDES) permitting program under the federal Clean Water Act relating to PNPS. I examined six boxes of documents maintained by Region 1 relating to PNPS's surface water intake and discharge.

These documents were represented to constitute all public records on PNPS's surface water intake and discharge to Cape Cod Bay that were in Region l's possession.

5. The files that I examined contained the jointly issued State Permit No. 359 and Federal Permit No. MA 0003537, hereinafter, the NPDES permit. The current NPDES permit for PNPS was issued in 1991 to Boston Edison Company, amended in 1994 and transferred to Entergy Nuclear Generating in 1999. The NPDES permit expired in 1996 but was administratively extended.

6. The last piece of correspondence in the EPA files between Entergy and EPA relating to the PNPS's NPDES permit was dated April 27, 2005. It is a letter from Entergy's attorney to EPA Attorney Stein addressing the scope of Clean Water Act Section 316(b) review necessary for PNPS's NPDES permit renewal. There was no document in the file after that date from either the agencies or the permittee which evidenced resolution of the issues raised in the permittee's letter or progress towards completing procedural requirements necessary for reissuance of a NPDES permit to PNPS.

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7. Through informal inquiries, my colleague and I were informed by both MassDEP and EPA personnel that no one from either agency was currently working on renewal of the NPDES permit for PNPS.

8. Based upon my experience as an attorney for MassDEP, I believe that it is impossible for a new NPDES permit for the Entergy PNPS to be issued by June of 2012. The EPA retains primary jurisdiction for implementing the NPDES program in Massachusetts, but no permit can be issued unless Massachusetts issues a "water quality certification" stating that EPA's permit does not violate the state water quality standards. 314 CMR 9.09.

9. During my years as an attorney for MassDEP, no permit in any program was ever issued in less than four months after legally required public notice and comment processes were commenced. Based upon my review of the PNPS files at EPA, the notice and public comment processes have not been initiated for reissuance of the PNPS NPDES permit. This process would include certification by Massachusetts that the EPA NDPES permit does not violate state water quality standards.

10. In my experience, the time necessary to complete public notice and comment was always significantly longer than four months when a joint federal state permit, such as a NPDES permit, was being reviewed. This is largely because of the substantial time which is invested in coordination between state and federal agencies.

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11. Significant questions were raised in the April 27, 2005 letter regarding the PNPS NPDES permit and remain unresolved. No staff member from either agency is currently assigned to review the PNPS NPDES permit, and anyone assigned now would be required to review, in much greater detail, the records that I have reviewed. State and federal regulations and requirements relating to Cooling Water Intake Structures (CWISs) for NPDES permit have changed substantially in the intervening seven years. Therefore, in my opinion, a new NPDES permit could not be issued to PNPS in less than one year from the date of this affidavit. The requirement for a water quality certification from Massachusetts also makes it virtually impossible that the NPDES permit for PNPS will be issued by June 2012.

electronically signed Executed in Accord with 10 C.F.R. 2.304(d) on March 6, 2012 Anne Bingham 78A Cedar St.

Sharon, MA 02067 781-414-1399 Email: annebingamlaw@comcast.net March 6, 2012 4

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

Entergy Nuclear Operations Inc. )

Pilgrim Nuclear Power Station )

License Renewal Application )

Affidavit of E. Pine duBois

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

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

2. 1am the executive director and a cofounder of the Jones River Watershed Association, Inc. (JRWA). JRWA is a 501(c)(3) corporation that was formed in 1985. "The purposes of the corporation shall include the exercise of power and authority to acquire and preserve natural resources and wildlife areas for the use and enjoyment of present and future generations, to preserve and protect historic sites, to educate the public about the wise use of natural resources, and to work with other organization having the same purposes." As part of this mission, JRWA has worked to monitor and improve the habitats and populations of diadromous fishes, including, in particular, river herring. The annual filings for IRWA are complete through corporate year 2010.

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3. 1have been directly involved with JRWA's operations and programs since 1985. This involvement has included work on many projects to perform in water research, studies, fish monitoring, etc., that relate to river habitats, and water quality and stream flows, as well as the interrelationship between fresh water rivers and marine ecosystems. As a result of my work, JRWA and I have received numerous awards, grants, and recognition for the work that I led to protect river and marine aquatic ecosystems. As a result of my experience and on the job learning about fisheries in Cape Cod Bay and the Jones River, I have been designated by JRWA to make comments in various regulatory processes, including the relicensing of PNPS. I have also been designated and authorized by JRWA and its members to request a hearing in the above-referenced licensing proceeding before the NRC and/or ALSB.

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

5. Of approximately 219 households that are active members of the JRWA, 215 families live and work within a 50-mile radius of the PNPS. JRWA members live, work and recreate in the Jones River and Cape Cod Bay. Some members raise oysters in the bay and go boating to enjoy fishing, exercise, kayaking and birding. Others raise food crops, including organic cranberries, and 2

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

6, In about 1991, 1 first became concerned about the potential impact of PNPS upon the fisheries in the Jones River and on the marine aquatic resources of Cape .Cod Bay to which the river discharges. I became concerned because of discussions I had with Robert Lawton who worked for MA Division of Marine Fisheries (DMF) to assess the impact of PNPS on the fish populations in Jones River. I became aware of the terrible impact PNPS had on these fish and the need for restoration efforts.

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

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

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

This includes the near shore areas in front of PNPS.

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

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

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

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

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

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

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

14. In 2006 and 2007, 1studied reports relative to operations at PNPS to provide comment at the hearings and in writing to the NRC on the PNPS application to renew its operating license for 20 years.

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

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

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

18. From 2007 through 2011, JRWA secured grant funds and managed the project to remove the Wapping Rd dam on the Jones River, which was JRWA's first major structural alteration to advance its goal to restore the spawning population of river herring. This was the first of three dams being 6

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

19. 1 reviewed the NRC's 2006 draft supplemental environmental impact statement prepared under NEPA for PNPS. I attend and provided testimony at the NRC public meetings held in Plymouth, Massachusetts in January 2007.

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

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

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

22. At the time, I was aware that the NPDES permit renewal process for PNPS was considering changes and improvements to once through cooling at the facility. JRWA had relied upon U.S. EPA to move forward in a timely manner 7

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

23. In the spring of 2011, 1contacted EPA to determine where the NPDES process was in review, and obtained the permit that was issued in 1991. In December I asked for an update on their process to issue the permit and to review their file. By early February 2012, JRWA learned: that the NPDES permit process for PNPS was stalled; that the consultation process under the Endangered Species Act between NMFS and the NRC had not been concluded on the NRC 2006 Biological Assessment; that the NRC has not completed an Essential Fish Habitat Assessment for Alewives, blueback herring, Rainbow smelt that migrate through CCB, past the PNPS and into Jones River, a designated EFH; and that Atlantic sturgeon is now proposed for listing as endangered under the ESA by NOAA. Further, we learned that, in November 2011, river herring had been designated as a candidate species by NMFS.

24. On February 6, 2012, JRWA sent a letter to NMFS to request a copy of their concurrence letter with the NRC biological assessment and PNPS GEIS conclusions regarding Endangered Species and EFH. A copy is attached hereto as Exhibit 1. JRWA sought to determine if NMFS had completed its consultation with the NRC on the Biological Assessment. IRWA also raised 8

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

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

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

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

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Executed in Accord with 10 C.F,R. 2,304(d) on March 6, 2012 E. Pine duBois 55 Landing Road Kingston MA 02364 781-585-2322 Email: pinegjonesriver.org March 6, 2012 10

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1. jo es River

-Watershed ociation 781-586-2322

• PO BOX 73, KINGSTON. MA 02364

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

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

Dear Ms. Colligan:

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

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

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

We have been unable to locate a NMFS concurrence letter or any subsequent comments from NMFS on the NRC biological assessment for PNPS.

I Unless otherwise noted, citations are to NRC's "Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants, Supplement 29, Regarding Pilgrim Nuclear Power Station, Final Report, July 2007,"

NUREG-1437, and its Appendices. (NUREG-1437). Available on line: http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/supplement29/index.html; Vol. 1 ML071990020; Vol. 2 Appendices ML071990027.

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

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

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

The two exceptions in 50 CFR 402.15(b) provide,

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

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

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

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

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

Relevant Facts PNPS is located on Cape Cod Bay and withdraws up to 510 million gallons per day (mgd) of once through cooling water from the Bay. Under the federal Clean Water Act and its state counterpart, PNPS has an NPDES permit. This permit expired on April 29, 1996, but has been administratively extended by U.S. EPA for 16 years.- The state water quality 2 Jointly issued State Permit No. 359 and Federal Permit No. MA 0003537. The NPDES permit is based on a daily plant operating capacity of 655 MW. See, Aug. 30, 1.994 Modification of NPDES permit. Following a power optimization overhaul in 2003, Entergy is now producing 715 MW daily. NUREG-1437, p. 1-8. The annual capacity factor for 2010 was 98.5%, meaning that PNPS operated at 100% capacity for 98.5% of the time.

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

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

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

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

2004). In light of the SJC's ruling, a careful ESA consultation is warranted.

In the PNPS relicensing process, Energy prepared an Environmental Report (ER) that the NRC used, along with other information, as the basis for its final environmental impact statement. NUREG-l 437, p. E-53. The NRC agency staff then produced the 2007 biological assessment based on the final environmental impact statement.

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

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

3See, e.g., ENSR and Entergy Corp., "Application of a Comprehensive Framework for Assessing Alternative Cooling Water Intake Structure Technologies Under 316b",

http://www.gunderboom.com/PDFfiles/EN SR%20Technical%20Paper.pdf 4Letter from Goodwin Proctor to NRC, Sept. 6, 2011 on Indian Point reactors.

http://pbadupws.nrc.gov/docs/ML I125/ML11257A103.pdf

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

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

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

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

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

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

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

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

From the Boston Globe: http://www.boston.com/business/ticker/2008/1 1/nuclear watchdo.html m " r ................

Third, NRC's Biological Assessment as to the effects on sea turtles is contradictory and lacking in specific habitat data. It relies on stranding data, and on Entergy's monitoring data. p. E-66. It states, "The applicant has been monitoring aquatic communities in western Cape Cod Bay since 1969. No Federally endangered or threatened species have ever been observed in Cape Cod Bay near PNPS, or in the facility intake and discharge areas, during the duration of these studies."

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

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

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

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

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

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

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

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

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

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

Webster Engineering Corporation, p. 7-4.

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

environmental impact report for this project. And, by improperly excluding this project from the NRC's EIS, Entergy's dredging project has evaded federal review. ESA consultation is required because as NRC states, "periodic maintenance dredging" may affect marine aquatic resources in Cape Cod Bay." NUREG, p. 4-75. "Marine aquatic resources" clearly include listed species, and the candidate species river herring.

Thank you for consideration of our inquiry. We look forward to hearing your response to how NMFS will be addressing the need for concurrence on NRC's conclusions. Please

.feel free to contact Meg Sheehan a 508-259-9154 or meg@ecolaw.biz if you have any questions about the issues raised in this letter.

Very truly yours, For Jones River Watershed Association Margaret E. Sheehan, Esq.

Anne Bingham, Esq.

Cc:

Nuclear Regulatory Commission U.S. EPA, Curt Spaulding, Region I Administrator U.S. EPA, Carl Dierker. General Counsel U.S. EPA, David Webster, Industrial Permits Massachusetts Department of Environmental Protection Pilgrim Watch Conservation Law Foundation Sierra Club, Massachusetts Chapter MassPIRG Toxics Action Project The Herring Alliance Whale and Dolphin Conservation Society Provincetown Center for Coastal Studies Massachusetts Audubon Society The Nature Conservancy, Massachusetts Chapter Cape Cod Hook Fisherman's Association Trout Unlimited, Massachusetts/Rhode Island Chapter Massachusetts Rivers Alliance Connecticut River Watershed Council Town of Plymouth, Board of Selectmen, Town Manager, Department of Public Works and Conservation Comrnission Town of Kingston, Board of Selectmen and Conservation Commission Town. of Duxbury, Board of Selectmen and Conservation Commission Cape Downwinders Pilgrim Coalition Cape Cod Bay Watch

Tui COMMIOMWEALTH OF MASSACHUSETTS ExEcUTIvE O.O *E*c or 'ENVI-FINMENA[L AFr.ntRs OFFICE Of C*OA-*s.AL ZONE MANAQEME-NT 100 CAMBSOCIE. STE'E.T.. BOSTON. MA 02202

-971 526-1206 FAX 161.71 .626.1240 June 27, 2000 Mr. Dave Webster Manager, Massachusetts State Program Office U.S. Environmental Protection.Agency New England Region 1 Congress St, Boston, MA 02114 RE: MCZM review Of the Entergy-Pilgrim Station § 316.Demonstration Report.

Dear Dave:

The Massachusetts Coastal.Zone Management: Office (MCUM) has reviewed the

§ 316 Demonstration Report prepared by Entergy Nuclear Generation Company (ENGC) for Entergy.Pilgrim Station. We find that the Demonsra-tion Report does not adequately support the conclusion. of no .significant impact to the species. inhabiting the waters surrounding Entergy-Pilgrim Station.

The Demonstration Report provides 25. years.of hydrothermal.and biological data collected near the intake and discharge structures of Entergy-Pilgrim Station, While the hydrothermal data provided show that biological impacts are minimal, at least one modeling study predicts that hundreds of acres of Cape Cod Bay may increase by one degree Celsius or more. due to thermal loading from the dislharge. The Demonstration.

Report dioes not provide adequate evidence to determine.lhw a temperature increase of just a few degrees may affect the. developmeni and survivorship of eggs and larvae or how a temperature increase may affect the future fecundity of adults exposed to the discharge plume in Cape Cod Bay.

The Demonstration Report provides evidence that the.rate.of fish impinged by the continuous action of the cooling water intake structures is thousands to.t=n of thousands per year. Certain schooling species (e.g., smelt and silversides) that are prey for recreationally and commercially important fish and shorebirds, comprise the majority of these impinged individuals. While large impingement events are confined to only a few fish species, it has yet to be determined how large single-day losses of these important prey species affect food web dynamics in the region of Cape Cod Bay near the Entergy-Pilgrim Station.

Of most concern is' the entrainment of eggs and planitonic larvae by the cooling water intake structures.. The Demonstration Report provides ample evidence that eggs AmEat PAUL CILLUCI. G vERNORL'.JANEI WPF .. LIM TE N4M'.GOVPAtNOR.- 00"D.UAND. S14;R[rAAT. TMOMWAV Wý 5JIU AR.0VILCTQR

. LeW R 1-t .C I

and larvae o many commercially and biologically important fish. species are entrained by the cooling water intake structures. The removal of these. eggs and. larvae from. the ecosystem and food web is an issue that has not been adequately addressed by. the Demonstration Report. The death. and physical destruction of these early life forms effectively removes these individuals from one trophic level and places their biomass and the energy it represents into another trophic, level.

Because winter flounder is a species of interest in Cape Cod Bay, the Demonstration Report determinesi equivalent adult figures for the number of winter flounder adults that would have lived had ft lrvae not been entrained (but not for any other species), We do not believe that the EN-C has provided enough evidence to state that the number of equivalent adults killed by, entrainment is not an adverse impact. By ENGC'.s calculations, between 47,000 and 77,000 equivalent adult winter. flounder were killed in: 1997 and 1998, respectively. When converted to pounds of fish taken, these values approach 40%. of the annual total recreational and commercial catch. Given that winter flounder stocks are declining and the Entergy-Pilgrim Station is killing tens of thousands of winter flounder annually, we cannot agree that ENGC has demonstrated that they arenot having an adverse environmental impact.

In.Summary, we find that the Demonstration Report presents 25 years of data that suggest that thermal loading and impingement due Io the cooling water intake structure at the Entergy-Pilgrim StatiOn have relatively minor impacts to adult fish. The Demonstration Report does not provide sufficient scientific evidence to state unequivocally that the entrainment of fish larvae and eggs does not constitute a long-term adverse impact to the food webcomprised of the collective populations of species within Cape Cod Bay.

Thomas W. Skinner Director TW"Stpc Mc: Gerald Szal DEP CERO Bob Maietta DEP CERO Nick Prodany, Senior Permit Writer

US EPA Jack Paar, Senior Biologist US EPA Lexington Laboratory

-Bob Lawton, Fisheries Biologist DMF Pocasset

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 February 29, 2012 Ms. Patricia A. Kurkul Northeast Regional Administrator National Marine Fisheries Service 55 Great Republic Dr.

Gloucester, MA 01930-2276

SUBJECT:

REQUEST FOR CONCURRENCE ON DETERMINATION OF EFFECTS CONCERNING ATLANTIC STURGEON AT PILGRIM NUCLEAR POWER STATION

Dear Ms. Kurkul:

The U.S. Nuclear Regulatory Commission (NRC, the staff) is writing you to request your concurrence on the U.S. Nuclear Regulatory Commission (NRC)'s determination of effects concerning the Atlantic sturgeon (Acipenseroxyrinchus oxyrinchus), which was recently listed under the Endangered Species Act of 1973, as amended (ESA), at Pilgrim Nuclear Power Station (Pilgrim).

Pilgrim is located in the Town of Plymouth, Plymouth County, Massachusetts, on the western shore of Cape Cod Bay. In a letter dated January 25, 2006, Entergy Nuclear Operations, Inc.

(Entergy) submitted an application to the NRC for a renewed license, which if granted, would allow Entergy to operate Pilgrim for an additional 20 years beyond the current operating license expiration date of June 8, 2012. As part of the NRC staff's environmental review of Entergy's license renewal application, the staff assessed the potential impacts of the proposed license renewal on Federally listed species.

The NRC submitted a biological assessment to your office via letter dated December 8, 2006, to support the staff's review of Entergy's license renewal application. The biological assessment appears in Appendix E of NUREG-1437, Supplement 29, "Generic Environmental Impact Statement for License Renewal Regarding Pilgrim Nuclear Power Station," and it considers the effects of the proposed license renewal on four species of sea turtles, five species of whales, and the shortnose sturgeon (Acipenser brevirostrum). In the biological assessment, the staff concluded that the proposed license renewal would have no effect on any of these species, and Entergy has not reported any takes of Federally listed species at Pilgrim since the issuance of the 2006 biological assessment that would call into question these conclusions. The December 8, 2006, letter transmitting the biological assessment summarized the assessment's conclusions and requested your concurrence on the NRC's effect determinations.

On February 6, 2012, the NMFS listed five distinct population segments of the Atlantic sturgeon under the ESA (77 FR 5880; 77 FR 5914). Atlantic sturgeon in the vicinity of Pilgrim are part of the Gulf of Maine distinct population segment, which is listed as threatened. Within Massachusetts, the Atlantic sturgeon occurs in the Merrimack, Taunton, and Connecticut Rivers (NMFS 2007). Subadults and adults are expected to occur in Cape Cod occasionally during migration, but the available literature does not indicate that they are common to the Plymouth

P. Kurkul area near Pilgrim. In the enclosed supplement, the NRC concludes that the proposed license renewal of Pilgrim would have no effect on the Atlantic sturgeon.

The NRC requests your concurrence on the NRC's determination concerning the Atlantic sturgeon as well as the NRC's 2006 biological assessment per 50 CFR 402.12(j). Please contact Ms. Briana Balsam, biologist, of my staff with any additional information you might need to assess the potential impacts to listed species at Pilgrim. You can reach her at 301-415-1042 or by e-mail at Briana.Balsam~nrc.,ov.

I have also forwarded a copy of this letter to Ms. Julie Crocker of your office. Ms. Crocker has been NRC's main point of contact for ESA issues related to the Pilgrim license renewal review.

Sincerely, Andrew S. Imboden, Chief Environmental Review and Guidance Update Branch Division of License Renewal Office of Nuclear Reactor Regulation Docket No. 50-293

Enclosure:

As stated cc w/encl: Listserv

Biological Assessment Supplement Pilgrim Nuclear Power Station Proposed License Renewal February 2012 Docket Number 50-293 U.S. Nuclear Regulatory Commission Rockville, Maryland Prepared by:

Briana Balsam Division of License Renewal Office of Nuclear Reactor Regulation ENCLOSURE

Supplement to Biological Assessment of the Potential Effects of Pilgrim's Nuclear Power Station's Proposed License Renewal on Federally Listed Species Introduction In December 2006 letter (NRC 2006a), the U.S. Nuclear Regulatory Commission (NRC) forwarded a biological assessment (NRC 2006b) to the National Marine Fisheries Service (NMFS) that the NRC staff prepared pursuant to compliance with the Endangered Species Act of 1973, as amended (ESA). The biological assessment considered the potential effects of the proposed license renewal at Pilgrim Nuclear Power Station (Pilgrim) on Federally listed species. The NRC staff assessed the effects of the proposed license renewal on four species of sea turtles, five species of whales, and the shortnose sturgeon (Acipenserbrevirostrum)and concluded that the proposed license renewal would have no effect on any listed species.

In February 2012, the NMFS listed five distinct population segments (DPSs) of the Atlantic sturgeon (Acipenseroxyrinchus oxynnchus) under the ESA. This supplement to the NRC's 2006 biological assessment assesses the potential effects of the proposed license renewal on the Atlantic sturgeon, Gulf of Maine DPS.

Life History The Atlantic sturgeon is an anadromous bony fish that can grow to 14 ft (4.3 m) and weigh up to 800 lbs (370 kg) (Gilbert 1989; NOAA 2012). Atlantic sturgeon are similar in appearance to shortnose sturgeon-bluish-black to olive brown dorsally with pale sides and underbelly-but are larger in size and have a smaller and differently shaped mouth (NOAA 2012). Females reach maturity at 7 to 30 years of age, and- males reach maturity at 5 to 24 years of age, with those fish inhabiting the southern range maturing earlier (ASMFC 2007).

Atlantic sturgeon larvae hatch infreshwater, and larvae migrate downstream from freshwater to brackish estuarine environments, where they remain for a few months to a few years (NOAA 2012). Juveniles and non-spawning adults inhabit estuaries and coastal marine waters dominated by gravel and sand substrates (NOAA 2012). Adults return to their natal rivers to spawn.

Distribution Historically, the Atlantic sturgeon has inhabited riverine, estuarine, and coastal ocean waters from St. Lawrence River, Canada to St. John's River, Florida (ASMFC 2009).

Within the U.S., the species was present in approximately 38 rivers from St. Croix, Maine to Saint John's River, Florida. Currently, the species resides in 36 U.S. rivers and spawns in at least 20 of these rivers (ASSRT 2007). Within Massachusetts, the Atlantic sturgeon occurs in the Merrimack, Taunton, and Connecticut Rivers, No evidence exists of spawning in any of these three rivers (ASSRT 2007).

Population Status Atlantic sturgeon have been commercially fished from as early as 1628, though a substantial Atlantic sturgeon fishery did not appear until the late 1800s (Shepard 2006).

Overfishing and habitat degradation caused a decline in landings beginning in the early 1900s; however, landings increased from 1950 to 1980, specifically in the Carolinas, and ranged from 45 metric tons per year (mt/yr) to 115 mt/yr (Shepard 2006). In 1998, the Atlantic States Marne Fisheries Commission (ASMFC), which manages the commercial harvest of the species, instituted a moratorium on Atlantic sturgeon harvest in U.S.

waters (NOAA 2012). Today, the species is still caught as bycatch. Based on data from 2001 to 2006, the ASMFC (2007) estimated that in U.S. waters, between 2,752 and 7,904 individuals per year are caught as bycatch in sink gillnets, and 2,167 to 7,210 individuals per year are caught as bycatch in trawls.

Information is unavailable on the current estimated population size of the Gulf of Maine DPS or its subpopulations. In the U.S., estimates exist for only the Hudson River, New York (870 spawning adults/year) and the Atlamaha River, Georgia (343 spawning adults/year) (75 FR 61572). These two rivers are considered to have the healthiest subpopulations (ASSRT 2007); therefore, the Gulf of Maine DPS subpopulations are predicted to have fewer spawning adults per year than either of these.

ESA Listing History In 2007, the NMFS considered listing the Atlantic sturgeon under the ESA, but concluded that listing was not warranted at that time. In 2009, the Natural Resources Defense Council (NRDC) petitioned for the NMFS to reconsider the listing of the species (NRDC 2009). The NMFS accepted the NRDC's petition in a 90-Day Finding on January 6, 2010 (75 FR 838). On October 6, 2010, the NMFS published Proposed Listing Determinations for five Atlantic sturgeon DPSs (75 FR 61872; 75 FR 61904). On February 6, 2012, the NMFS listed the five Atlantic sturgeon DPSs under the ESA (77 FR 5880; 77 FR 5914). Atlantic sturgeon in the vicinity of Pilgrim are part of the Gulf of Maine DPS, which is listed as threatened.

Determination of Effects Within Massachusetts, the Atlantic sturgeon occurs in the Merrimack, Taunton, and Connecticut Rivers (ASSRT 2007). Subadults and adults are expected to occur in Cape Cod occasionally during migration, but the available literature does not indicate that they are common to the Plymouth area near Pilgrim.

Per NRC regulations, Entergy must report events or situations related to protection of the environment to the NRC for which notification to other government agencies has been or will be made (10 CFR 50.72(b)(2)(xi)). Incidental takes of Federally listed species would constitute an event that Entergy must report to the NRC per this regulatory requirement. The NRC staff reviewed event reports for PIlgrim and found none that indicated that a take of Atlantic sturgeon has occurred at Pilgrim since it began operating in 1972.

Conclusion Based on the available information on the distribution of Atlantic sturgeon and the absence of any record of incidental takes of the species at Pilgrim since it began operating, the NRC concludes that the proposed license renewal of Pilgrim will have no effect on the Atlantic sturgeon.

References References that appearwith an Agencywide Document Access and Management System (ADAMS) accession number can be accessed through NRC's web-based ADAMS at the following URL: http://adams.nrc.qov/wba.

10 CFR Part 50. Code of FederalRegulations, Title 10, Energy, Part 50, "Domestic licensing of production and utilization facilities."

75 FR 838. National Oceanic and Atmospheric Administration. "Endangered and Threatened Wildlife; Notice of 90-Day Finding on a Petition to List Atlantic Sturgeon as Threatened or Endangered under the Endangered Species Act (ESA)." FederalRegister 75(3):838-841. January 6, 2010.

75 FR 61872. National Oceanic and Atmospheric Administration. "Endangered and Threatened and Plants; Proposed Listing Determinations for Three Distinct Population Segments of Atlantic Sturgeon in the Northeast Region." Federal Register 75(193):61872-61904. October 6, 2010.

75 FR 61904. National Oceanic and Atmospheric Administration. "Endangered and Threatened Wildlife and Plants; Proposed Listing Determinations for Two Distinct Population Segments of Atlantic Sturgeon in the Southeast Region." FederalRegister 75(193):61904-61929. October 6, 2010.

77 FR 5880. National Oceanic and Atmospheric Administration. "Endangered and Threatened Wildlife and Plants: Final Listing Determinations for Two Distinct Population Segments of Atlantic Sturgeon (Acipenser oxyrinchus oxyrinchus) in the Northeast."

FederalRegister 77(24):5880-5912. February 8, 2012.

77 FR 5914. National Oceanic and Atmospheric Administration. "Endangered and Threatened Wildlife and Plants; Final Listing Determinations for Two Distinct Population Segments of Atlantic Sturgeon (Acipenser oxyrinchus oxyrinchus) in the Southeast."

FederalRegister 77(24):5914-5982. February 6, 2012.

[ASMFCJ Atlantic States Marine Fisheries Commission. 2007. Estimation of Atlantic Sturgeon Bycatch in CoastalAtlantic Commercial Fisheriesof New England and the Mid-Atlantic. Special Report to the ASMFC Atlantic Sturgeon Management Board.

August 2007. Available at <htt.://www.asmfc.orcilspeciesDocuments/sturcgeonf bycatchReportAuq07,pdf> (accessed 14 February 2012).

ASSRT (Atlantic Sturgeon Status Review Team). 2007. Status Review of Atlantic Sturgeon (Acipenseroxyrinchus oxyrinchus). Report to National Marine Fisheries Service, Northeast Regional Office. February 23, 2007. Available at

<http://www.nmfs. noaa.,qovlpr/pdfs/statusreviews/atlanticsturmeon2007. rdf> (accessed 14 February 2012),

Gilbert CR. 1989. Species Profiles: Life Historiesand Environmental Requirements of Coastal Fishes and Invertebrates(Mid-Atlantic)-Atlantic and Shortnose Sturgeons. U.S.

Fish and Wildlife Service Biological Report 82(11.122). U.S. Army Corps of Engineers TR EL-82-4. December 1989. Available at <http:/lwww.nwrc.usns.,qov/wdblpub/

species profiles/82 11-122.pdf" (accessed 14 February 2012).

[NOAA] National Oceanic and Atmospheric Administration. 2012. "Atlantic Sturgeon (Acipensaroxyrinchus oxyrinchus)."Available at

<http://www. nmfs.noaa.,ov/pr/speciestrish/atlanticsturmieon, htm> (accessed 14 February 2012).

[NRC] U.S. Nuclear Regulatory Commission. 2006a. Letter to Colosi PD, Assistant Regional Administrator for Habitat Conservation, NMFS, from Kuo PT, Acting Division Director of License Renewal.

Subject:

Biological assessment and essential fish habitat assessment for license renewal of Pilgrim Nuclear Power Station. December 8, 2006.

ADAMS No. ML063390166.

[NRC] U.S. Nuclear Regulatory Commission. 2006b. BiologicalAssessment for License Renewal of Pilgrim Nuclear Power Station. Appendix E to NUREG-1 437, Supplement 29, Generic Environmental Impact Statement for License Renewal RegardingPilgrim NuclearPower Station. December 2006. 29 p. ADAMS No. ML063260173.

[NRDC] Natural Resources Defense Council. 2009. Before the Secretaryof Commerce, Petition to List Atlantic Sturgeon (Acipenser oxyrinchus oxyrinchus) as an Endangered Species, or list Specified Atlantic Sturgeon DPSs as Threatened and Endangered Species, andto Designate CriticalHabitat.September 30, 2009. Available at

<http://www.nmfs.noaa.,ov/pr/pdfs/species/petition atlanticsturgeon nrdc.pdf>

(accessed 14 February 2012).

Shepard G. 2006. "Status of Fishery Resources off the Northeastern U.S.: Atlantic and Shortnose Sturgeons." December 2006. Available at

<http://www.nefsc.noaa.gov/sos/spsyn/af/sturgeon/archives/42 Atlantic ShortnoseSturnq eons 2006. Ddt> (accessed 14 February 2012).

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

Entergy Nuclear Operations Inc. )

Pilgrim Nuclear Power Station )

License Renewal Application )

1. My name is Alex Mansfield and I live at 14 Puritan Lane, Marshfield, Massachusetts. My home where I reside with my family is 12 miles from the Pilgrim Nuclear Power Station (PNPS) in Plymouth, Massachusetts.

2. 1 am currently employed as the Ecology Program Director for the Jones River Watershed Association (JRWA) in Kingston, Massachusetts. I have held this position for four and a half years. My duties in this position are to conduct and manage restoration and monitoring projects that relate to the ecology and health of Silver Lake, the ]ones River, Kingston Bay, and Cape Cod Bay.

3. In addition to my job at JRWA, I have been an owner and Senior Scientist for Saquish Scientific LLC in Duxbury, MA from 2007 to present. I worked as a Principal Research Scientist for Battelle Memorial Institute from 1999 to 2007, and I was employed from 1997 to 1999 for the Massachusetts Water Resources Authority (MWRA) as a Senior Laboratory Technician.

4. 1 received a Master of Science in Environmental, Coastal, and Ocean Sciences in 1997 from the University of Massachusetts. I have Bachelor of Science from the University of Massachusetts. I am a member of the Estuarine Research Federation, Page 1 of 12

New England Estuarine Research Society, National Shellfisheries Society, East Coast Shellfish Growers Association, and serve of the Board of Directors for the Jones River Landing Environmental Heritage Center.

5. i have over fifteen years of experience assessing environmental impacts associated with the construction and/or operation of projects that have impacts on water quality and marine and freshwater aquatic resources, including fisheries. For example, I worked as a Chief Scientist and Principal Research Scientist in connection with assessments on marine aquatic resources related to the wastewater discharges from the MWRA wastewater treatment plant outfall pipe located in Cape Cod.Bay.

6. 1have reviewed the PNPS Biological Assessment (BA) dated December 2006 found in the "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 29, Regarding Pilgrim Nuclear Power Station, Final Report, NUREG-1437, Appendix E, pages E51-E77," published July 2007 (GEIS).

This includes a list of endangered and threatened marine aquatic species.

7. The references given in my affidavit are listed at the end of this affidavit.

8. The GEIS states, "Eleven Federally and/or State-listed marine species could occur in Cape Cod Bay in the vicinity of PNPS, including five whales." GElS, Table 2-4,

p. 2-84, which is reproduced below. Cape Cod Bay is the southwestern most portion of the Gulf of Maine (EOEA, 2009). The 2010 U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments, conducted by National Marine Fisheries (NMFS) an agency within the federal National Oceanic and Atmospheric Administration (NOAA), confirms the presence of these species in Cape Cod Bay. (Waring et al 2011 pgs 8-39).

Page 2 of 12

Table 2.4. Anadromous and Marine Threatened or Endangered Species Scientific Name Common Name Federal Status Massachusetts Status TURTLES Caretta caretea loggerhead turtle Threatened Threatened Chelonie rnydas green turtle Threatened (endangered in FL) Threatened Dermochelys coriacea leatherback turtle Endangered Endangered Lepidochelys kempii Kempas ddley turtle Endangered Endangered WHALES Balaenoptera borealis set whale Endangered Endangered Balaenoptera physelus fin whale Endangered Endangered Eube/aena glacialls North Atlantic Endangered Endangered right whale Megaplero novaengliae humpback whale Endangered Endangered Physeter catadon '= sperm whale Endangered Endangered FISH Acipenser brevirostrum shortnose sturgeon Endangered Endangered Acipenser oxyrinchus Atlantic sturgeon not listed Endangered 1

') The spenn whale has two accepted scientific names: Physetar cetadon and P. macrocephalus, Source: FWS 2006b

9. The GEIS states, Section 2.2.5.3.7, states, Although these species have been documented in Cape Cod Bay and/or coastal Massachusettswaters, no whales have been observed in the shallow waters off PNPS or in the intake and discharge areasby Boston Edison or Entergy biologistssince biologicalmonitoring began in the late 1 960s.

10. 1have reviewed the document entitled, "Summary Report: Fish Spotting Overflight in Western Cape Cod Bay in 1993" (Fish Spotting Report). It is a segment of the "Marine Ecology Studies Related to Operation of Pilgrim Station, Semi Annual Report No. 43, January 1993 to December 1993" (1993 Marine Ecology Study). The 1993 Marine Ecology Study states that it was prepared by Boston Edison Company.

The Fish Spotting Report pertains to observations of marine aquatic species within that area by Boston Edison. A true and accurate copy of Figure 1 from the Fish Spotting Overflight segment of the 1993 Marine Ecology Study is reproduced below as Figure 1 of this affidavit.

Page 3 of 12

A AA

! L I I- -

- , °-

4,'

I.6- X~

r xo 45- 11 4, 06,,

Figure 1. Relproduction of Figure 1 from the 1993 Fish Spotting Overflight report

11. Figure 1 to the Fish Spotting Report is entitled "Fish Surveillance Overflights (Critical Area). It contains a dashed line in Cape Cod Bay. The Note on Figure 1 of the Fish Spotting Report states that the "critical surveillance area is west of the dashed line in the vicinity of the specific locations noted." I understand this "critical area" to be the area surveyed by Boston Edison Company to determine whether marine species were present in the vicinity of PNPS.

Page 4 of 12

12. North Atlantic Right Whales have been documented in Western Cape Cod Bay, including in shallow water. NOAA's Sighting Survey and Sighting Advisory System tracks Right Whales throughout the region. In 2005 and 2006, prior to the July 2007 GEIS, Right Whales were spotted by NOAA in Cape Cod Bay. Figure 2 below in this affidavit shows North Atlantic Right Whale sightings from January 1, 2005 to December 31, 2006 as reported by NOAA's Sighting Survey and Sighting Advisory System database (http://www.nefsc.noaa.gov/psb/surveys/).

13. The red line on Figure 1 in this affidavit, below is the area the same line used to show the "critical area" from Figure 1 of the Fish Spotting Report. The red circle on Figure 1 below in this affidavit indicates a 6-mile radius around PNPS. The numbers on Figure 1 below represent the number of whales sighted in each group.

Figure 2. Right Whales Sightings 1/1/2005 - 12/31/2006. Labels Indicate Number of Whales Sighted in Group.

Page 5 of 12

14. Figure 3 below shows North Atlantic Right Whale sightings from January 1, 2007 to February 28, 2012, as reported by NOAA's Sighting Survey and Sighting Advisory System database (http: /www.nefsc.noaa.govlpsblsurveys!].

Figure 3. Right Whales Sightings 1/1/2007 - 2/28/2012. Labels Indicate Number of Whales Sighted in Group.

15. The data complied in Figures 2 and 3, above, shows that North Atlantic Right Whales are found within the "critical area" identified in Figure 1 of the Fish Summary Report Figures 1 and 2 show North Atlantic Right Whales spotted within the 6 mile radius of PNPS.

16. 1have reviewed the NRC staff BA of 2006. It does not contain the information shown in Figures 2 and 3 of this affidavit, or similar commercially available scientific data. The information contained in Figures 2 and 3 of this Page 6 of 12

affidavit is scientific and commercially available data which could have been obtained prior to July 2007. This data shows that marine species, including North Atlantic Right Whales are present in much broader spatial scales than the narrow areas defined by the GElS and the 2006 BA.

17. Both NMFS (Waring et al 2011) and the International Whaling Commission (Best et al. 2001) consider the North Atlantic Right Whales to be one of the most critically endangered populations of large whales in the world, and have identified the need for significant protections for this species. NMFS has indicated that "given that PBR [potential biological removal] has been set to 0.7, no mortality or serious injury for this stock can be considered insignificant. This is a strategic stock because the average annual human-related mortality and serious injury exceeds PBR, and also because the North Atlantic right whale is an endangered species."

18. NMFS has published a Recovery Plan for the North Atlantic Right Whale (NMFS 2005). "The ultimate goal of this recovery plan is to promote the recovery of North Atlantic right whales to a level sufficient to warrant their removal from the List of Endangered and Threatened Wildlife and Plants under the ESA." To meet that goal NMPS has targeted steady population increases over the course of at least 35 years. NMFS does not even attempt to cite criteria for delisting North Atlantic right whales "since the current abundance of North Atlantic right whales is an order of magnitude less than an abundance at which NMFS would even consider delisting the species, and decades of population growth likely would be required before the population could attain such an abundance." Neither the GElS nor the 2006 BA consider NM FS's targeted population increases for North Atlantic Right Whales.

Page 7 of 12

19. As described in GELS, four federally endangered sea turtles could occur in the vicinity of PNPS. See, Table 2-4 from the GEIS.

20. As described in the GELS, pg. 2-84, migratory sea turtles that are still present in Cape Cod Bay in late fall and winter may become cold-stunned and wash ashore.

In the winter of 1999 to 2000, 277 sea turtles were found on Cape Cod beaches. In 2003 there were 89 turtles stranded. In 2003, a loggerhead turtle was stranded on Priscilla Beach approximately 0.63 mi south of PNPS.

21. As climate change impacts ocean temperatures migratory species are expected to adjust their ranges accordingly. The sea turtles found in Cape Cod Bay are generally at the northern end of their migratory ranges. Mid-term changes (i.e.

20 years) to water temperatures may result in the northward expansion of many migratory species' ranges. The GEIS has not addressed how mid-term changes (i.e.

20 years) to water temperatures could impact migratory marine species, including endangered turtles, during the time span of the proposed continued operations of PNPS, i.e. 2012 to 2032.

22. "River herring" includes two species, alewife (Alosa pseudoharengus)and blueback herring (Alosa aestivalis). Starting in January 2006 Massachusetts Division of Marine Fisheries implemented a three year moratorium on the-harvest, possession and sale of river herring (322 CMR 6.17). In 2008, the state moratorium was extended to the end of 2011. As of January 1, 2012 the Atlantic States Marine Fishery Commission (ASMFC) requires states to declare a moratorium on fishing for river herring unless a Sustainable Fishery Plan (SFP) is prepared and approved.

Massachusetts has not prepared a SFP and continues to operate under the Page 8 of 12

moratorium (322 CMR 6.17). They are currently listed as a candidate species by NMFS under the ESA (76 FR 67652).

23. River Herring are consistently impinged by PNPS operations. Alewives have had the third highest number of individuals impinged at PNPS, based on annual extrapolated totals (Normandeau 2006).

24. 1 have reviewed the 2010 "Marine Ecology Monitoring Report" prepared by Normandeau Associates in relation to PNPS for Entergy Corporation. It shows entrained and impinged fish species from 1980 to 2010 at PNPS. (Normandeau 2011). This report shows that both alewife (Alosa pseudoharengus)and blueback herring (Alosa aestivalis) were impinged by PNPS every year from 1980 to 2010.

The total number of river herring impinged in this time period was estimated at 92,001 (68,489 alewife + 23,512 blueback herring). Peak impingement years included:

0 1995 when alewife alone was the greatest single species impinged at the plant and total river herring impinged was 41,128 individuals (39,884 alewife + 1,244 blueback herring)

• 2010 when alewives were the second most impinged species (after Atlantic silversides) at an extrapolated total of 12,680 fish plus an additional 271 blueback herring. This is more than three times greater than the total number of fish estimated for the entire 2010 Jones River river herring population.

25. The high levels of impingement of river herring have not been addressed in the NRC Staff BA or in the GEIS. In addition to impingement of adult and juvenile river herring the GElS states that Alewife larvae and juveniles have been collected in the PNPS entrainment sampling (GELS, p. 2-34). The GEIS does not address the reasons why river herring larvae and juveniles are found in the PNPS facility when Page 9 of 12

these species spawn in freshwater rivers, tributaries, ponds and lakes. The reproductive cycle of river herring is such that the eggs and hatched fry remain in freshwater. juveniles eventually migrate out to marine environments in the late summer and fall.

26. In the GEIS, section 4.8.1 Cumulative Impacts on Marine Aquatic Resources, concludes, Cumulative impacts on the marine aquaticfood web also could potentially occur as a result of reductions in the prey base of higher-trophic-level predators.If major reductionsin Cape Cod Bay populationsofforage fish, such as rainbowsmelt, alewife, herring,menhaden, and silverside, resultedfrom mortality due to entrainmentand/orimpingement at PNPS, then predatory fish, as well as some birdspecies, dependent on these prey populationsmight be adversely affected. Although populationsof some forage species,such as the rainbowsmelt, have declinedrelative to historicallevels, stocks of mostforage species are relatively healthy.

And also, Impingement and entrainmentimpactsfrom PNPS may also contributeto reduced stock sizes, in turn lowering the catch per unit effort for both commercial and recreationalfishing. With the exception of winterflounder and rainbowsmelt, most of the fish stocks potentially affected by PNPS are consideredto be healthy or the levels of take by PNPS are very minimal,

27. River herring are not addressed in the discussion and conclusion above. In 2007, when the SEIS was issued, river herring had already been nationally listed as a species of concern and Massachusetts had declared three year moratorium on the harvest, possession and sale of river herring (see above paragraph 22). Entergy's reports have shown that river herring have been impinged every year of the past thirty years and that alewives have had the third highest number of individuals impinged at PNPS of any species (see paragraph 24 above).

Page 10 of 12

28. River herring are not the only ecologically important species impinged and entrained by PNPS. Other critical, low trophic level species such as Atlantic herring (Clupea harengus),Atlantic mackerel (Scomberscombrus), Atlantic menhaden (Brevoortiatyrannus), Atlantic silverside (Menidia menidia), Rainbow smelt (Osmerus mordax), Atlantic sand lance (Ammodytes americanus)and others are routinely impinged and entrained at very high rates.

For example:

• 1991 an estimated 90,449 Atlantic silversides were impinged

• 2005 an estimated 277,601 Atlantic menhaden were impinged

• 2003 an estimated 30,763 Sand Lance were impinged

• Eggs of these species are frequently entrained by the hundreds of millions or more.

29. The direct impact on the low trophic species has not been addressed in the GEIS. Moreover, the cumulative impacts of food web dynamics and ecological function at higher trophic levels, especially for state and federally listed endangered and threatened species, and candidate species river herring, has not been addressed. For example, as pointed out in the GEIS "Sand lance is an important prey species for many demersal fish species and the endangered fin whale (Balaenoptera physalus) and humpback whale (Megaptera novaengliae)". Other frequently entrained and impinged species (Atlantic herring, Menhaden, etc) are also common prey and/or incidental food for endangered species including Humpback whales, Fin whales, Sei whales, etc. Yet no cumulative impacts are described in the GELS.

30. The action area for purposes of the ESA is defined in 50 CFR 402.02 as "all areas to be affected directly or indirectly by the Federal action and not merely the Page 11 of 12

immediate area involved in the action." The GEIS does not address how thermal loading, impingement, and entrainment impact the food web, food supply for the listed species and critical habitat.

31.

References:

Best, P.B., J.L. Bannister, J. R.L. Brownell and G.P. Donovan, eds. 2001. Right whales:

worldwide status. J. Cetacean Res. Manage. (Special Issue) 2: 309.

Executive Office of Energy and Environmental Affairs (EOEA). 2009. Massachusetts Ocean Management Plan. Volume 2 - Baseline Assessment and Science Framework.

National Marine Fisheries Service. 2005. Recovery Plan for the North Atlantic Right Whale (Eubalaenaglacialis).National Marine Fisheries Service, Silver Spring, MD.

Normandeau Associates (Normandeau). 2006. Impingement of Organisms on the Intake Screens at Pilgrim Nuclear Power Station; January to December 2005. Marine Ecology Studies, Pilgrim Nuclear Power Station, Report Number 67 Normandeau Associates (Normandeau). 2011. Marine ecology studies related to operation of pilgrim station. Report number 77.

NUREG-1437. 2007. Supplement 29. Vol. 1. Generic Environmental Impact Statement for License Renewal of Pilgrim Nuclear Power Station.

Waring GT, Josephson E, Maze-Foley K,Rosel, PE, editors. 2011. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments -- 2010. NOAA Tech Memo NMFS NE 219; 598 p Executed in Accord with 10 C.F.R. 2.304(d) on March 6, 2012 Alex Mahsfield, Environmental Director, JRWA, Inc.

alex@jonesriver.org 14 Puritan Lane Marshfield, Massachusetts Tel. 781-585-2322 Dated: March 6, 2012 Page 12 of 12

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

Entergy Nuclear Operations Inc. )

Pilgrim Nuclear Power Station )

License Renewal Application )

REPLY AFFIDAVIT OF ALEX MANSFIELD

1. My name is Alex Mansfield and I live at 14 Puritan Lane, Marshfield, Massachusetts. I am the Ecology Director at Jones River Watershed Association, Inc. (JRWA) in Kingston, Massachusetts.

2. 1am providing this affidavit in the above-referenced matter to respond to the Affidavit of Michael D. Scherer (Scherer Affidavit) submitted in support of Entergy's answer opposing the March 8, 2012 motion of JRWA and Pilgrim Watch to reopen and for a hearing.

3. My qualifications, background, and expertise are described in the affidavit I submitted in the above-referenced matter in support of the motions of JRWA and Pilgrim Watch, and will not be repeated here, but are incorporated by reference herein.

4. In this Affidavit, I respond to three subjects addressed in the Scherer Affidavit. First, cold stunning of federally endangered sea turtles in Cape Cod Bay; second, NOAA sighting data 1

for North Atlantic Right Whales in Cape Cod Bay; and third, mortality rates for river herring, a candidate species under the federal Endangered Species Act.

Federally Endangered Sea Turtles:

5. The Scherer Affidavit IN 29 to 47 addresses the potential of four federally endangered sea turtles to be present at, or impacted by, the Pilgrim Nuclear Power Station (PNPS) cooling water intake structure (CWIS). Scherer states, for example, "...early life stages of sea turtles are not present in the vicinity of PNPS... healthy juvenile sea turtles are present in the Bay, but are not reasonably expected in the immediate vicinity of PNPS... impaired sea turtles, as a function of cold stunning, move with prevailing currents away from PNPS, and therefore are also not credibly expected to encounter PNPS's CWIS. Scherer Aff. 1129. He concludes, "no sea turtle has ever been observed impinged or swimming in the PNPS intake embayment." Id., ¶ 36.

6. Scherer's conclusions in ¶s 29 and 36 about healthy and impaired juvenile and adult sea turtles "encountering PNPS's CWIS" and becoming impinged or swimming in the PNPS intake embayment does not fully address the thermal conditions at the PNPS discharge location.

7. Under the PNPS 1991 NPDES permit, modified in 1994, PNPS is allowed to discharge heated water into Cape Cod Bay. The permit allows for a temperature increase from intake to discharge of up to 32 degrees Fahrenheit, and a daily maximum temperature of up to 102 degrees Fahrenheit during all seasons of the year. PNPS NPDES Permit, A.2.a.

8. The Scherer Affidavit states, "If during the fall, the water temperature declines too quickly, sea turtles may become "cold stunned." ¶ 32. The reference for this statement (Morreale et al. 1992) is not a study that addresses, or even mentions, cold stunned turtles. Scherer further states, "Beginning in November, when the water temperature in the Bay nears 50'F, some sea turtles can become cold stunned, at which point they may travel with prevailing winds and 2

currents, often washing up on shore, an event known as "stranding." ¶ 32 It is not known why sea turtles sometimes fail to migrate south prior to declines in water temperature that result in cold stunning. One factor not discussed in the Scherer Affidavit is whether elevated water temperatures at industrial facility discharge points, such as the PNPS cooling water discharge may attract turtles and entice them to stay in northern waters longer than they would in the absence of the heated discharge plume,

9. The Scherer Affidavit suggests that the stranding locations of federally endangered sea turtles in Cape Cod Bay is not a good indicator of where cold stunning takes place. In ¶33 the Scherer Affidavit states, "It is not known whether stranded turtles are stunned inside the Bay or are swept into the Bay already in cold stunned condition. However, well-known studies of currents in Massachusetts Bay and Cape Cod Bay readily explain observed stranding patterns, and offer a clear and cohesive understanding of how cold-stunned turtles are carried in Cape Cod Bay, including in the vicinity of PNPS." Id. ¶ 32. Scherer further states, "...Cape Cod Bay's prevailing circulation pattern creates a net south flowing current in front of PNPS, which should carry cold stunned turtles south past PNPS and to the southeastern shore, where they would wash ashore." Id. ¶ 34.

10. It has not been well documented where in Cape Cod Bay the actual cold stunning of sea turtles occurs. Cold stunned turtles in the vicinity of PNPS should be carried by prevailing currents away from PNPS to the southeastern shore of Cape Cod Bay where they would wash ashore.

11. Scherer's Affidavit suggests that the location of sea turtle strandings is not a good indicator of where the turtle cold stunning takes place. Therefore, it is not correct to suggest that stranding locations away from the PNPS thermal discharge plume are not related to impacts from 3

the plume. Yet this is the basis for the Scherer Affidavit conclusion that, "Specifically, sea turtle stranding data for Massachusetts for the more than twenty year period from 1986 through 2007 indicate that, during this period, sea turtles have only rarely stranded in Plymouth County, where PNPS is located, as compared to Barnstable County, which comprises the Cape Cod portion of the Bay. (NMFS SEFSC 2012.). ...Consistent with this twenty-year dataset, stranding locations for the years 2003 and 2010 indicate that the vast majority of sea turtles stranded in Cape Cod occur on the south east shore of Cape Cod Bay. (Dodge et al. 2003, Mass Audubon 2012b)." Based on his own testimony that cold stunning may occur in one location, and stranding in another, it is inconsistent to say, as Scherer does, that data showing the location of sea turtle strandings data shows conclusively that PNPS operations have "no effect" on sea turtles. Based on Scherer's description of Cape Cod Bay circulation patterns in his Affidavit at ¶ 34, prevailing currents should carry sea turtles that are cold stunned in the vicinity of PNPS away from the site to the southeastern shore of Cape Cod Bay, where they would wash ashore.

Hence, it is expected that any sea turtles cold stunned in the vicinity of PNPS would be stranded not in Plymouth County but in the southeastern portion of the Bay. This is exactly where sea turtle strandings have occurred. See, e.g. PNPS EIS, NUREG-1437, Supp. 29, p. E-65 Federally Endangered Whales:

12. The Scherer Affidavit addresses federally endangered whales in ¶¶ 48 to 70.

My first Affidavit showed that North Atlantic Right Whales are observed in the western portions of the Bay near PNPS. This testimony was provided to refute the NRC Staff conclusion in the 2006 BA that "continued operation of PNPS over the 20-year renewal period would have no effect on the North Atlantic right whale." 2006 BA at p. E-70. (emphasis supplied) 4

The 2006 BA appears to have based this conclusion of"no effect" on the PNPS EIS, § 2.2.5.37, statement "no whales have been observed in the shallow waters off PNPS...." The Scherer Affidavit ¶50 attempts to refute the sighting data provided in my first Affidavit. Scherer provides information from a recent study that standardized NOAA's sighting data for North Atlantic right whales, based on Sightings Per Unit Effort ("SPUE") (Nichols et al. 2008). Two Figures from that report are reproduced here as Figures 3 and 4.

13. Figures 3 and 4 are highly consistent with the figures and information provided in my first Affidavit. The Nichols et al. 2008 report cited in the Scherer Affidavit and Figures 3 and 4 show that whether the data are portrayed as "raw" sightings (Figure 3) or are standardized by SPUE (Figure 4), North Atlantic right whales are found within a 6 mile radius of PNPS and within the "critical area" identified in the "Summary Report: Fish Spotting Overflight in Western Cape Cod Bay in 1993" (Fish Spotting Report) and reproduced in my first Affidavit. My first Affidavit does not dispute the data showing that North Atlantic right whale sighting densities are higher in the eastern portion of Cape Cod Bay as compared the western part; it only disputes the 2006 BA statement that "no [North Atlantic right whales] have been observed in the shallow waters off PNPS...." The data I have provided showing the presence of these whales within the 6 mile "critical area" should be taken into account in determining whether or not the PNPS operations will have "no effect" as the 2006 BA concludes. This data was not taken into account.

5

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recorded during valid aerial survey effort 1998-2002. A sight-ing is defined as one or more whales: observed at the same time and location.

6

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= 537 ,12301252t-5ft petcemile Figure 4 Overall wean North Atlantic right whale tEubalaena glacialis)

Pightingp per unit of effort (SPUE; number of whalea/10 km of survey effort in Cape Cod Bay, 199"-2002. SPUE values are sMparated by quartiles, representing the top, second highest, third, aad bottom quarters of the distribution. The upper quarter is further partitioned by identifying the top 5%, of a values, ESA Candidate River Herring

14. The Scherer Affidavit addresses river herring in ¶¶ 71-73. It states that "River herring impingement is likewise minimal. From 1980 to 2010, annual impingement at PNPS of alewives and blueback herring averaged 2,150 and 735 respectively, most, if not all, of which 7

were young-of-the-year fish." Scherer Affidavit ¶73. The Scherer Affidavit does not give any scientific or factual basis or any context for declaring that the impingement is 'minimal.' This is a subjective conclusion. It is equally conceivable that the impingement of an annual average 2,885 (annual maximum = 41,128) of a federal candidate ESA species could be considered more than 'minimal.'

15. The Scherer Affidavit ¶ 73 states, "Due to the high natural mortality rates of these species, the number of adult fish (i.e., maturing at age 3) that would be expected to survive from that number of juveniles is 38 and 2, respectively. Therefore, PNPS's effect on river herring populations through impingement is also negligible at best." It is unclear how Scherer arrives at this mortality rate, since he provides no citation for this statement. Regardless, the logic of the conclusion is circular. Mortality rates for river herring species include mortality from all sources

- including impingement at industrial facilities like PNPS. It is therefore circular to compare overall mortality/survival rates against one mortality source that is included in the overall rate. If river herring were not impinged every single year for the past 30 years at PNPS at rates of up to 41,128 fish per year, the overall mortality rates for these species may be quite different.

16. The Scherer Affidavit fails to address the fact that starting in January 2006 Massachusetts Division of Marine Fisheries implemented a three year moratorium on the harvest, possession and sale of river herring (322 CMR 6.17). In 2008, the state moratorium was extended to the end of2011. As of January 1,2012 the Atlantic States Marine Fishery Commission (ASMFC) requires states to declare a moratorium on fishing for river herring unless a Sustainable Fishery Plan (SFP) is prepared and approved. Massachusetts has not prepared a SFP and continues to operate under the moratorium (322 CMR 6.17). Scherer does not provide 8

an explanation of any role the PNPS river herring impingement rates would play in this moratorium.

Impact of PNPS Thermal Discharge on Temperature of Cape Cod Bay Water and ESA species

17. The Massachusetts Coastal Zone Management Office (MCZM) has stated that "at least one modeling study predicts that hundreds of acres of Cape Cod Bay may increase by one degree Celsius or more due to thermal loading from the [PNPS] discharge." June 27, 2000 letter attached to duBois Affidavit, submitted with Petitioners' March 8, 2012 Motion.

As stated in the NRC Staff 2006 BA, "[h]abitat degradation, contamination and climate and ecosystem change are also possible threats to the [North Atlantic Right Whale] population."

Water temperature also impacts the migratory patterns of the endangered sea turtles. See, e.g.,

Scherer Affidavit ¶ 32, "In the fall, when water temperatures begin to decline, the sea turtles leave New England and the Bay, and travel south to warmer waters to overwinter."

The Scherer Affidavit does not address the impact of PNPS thermal discharges on the migratory patterns, or the feeding, foraging or reproductive patterns on the endangered sea turtles or river herring.

Executed in Accord with 10 C.F.R. 2.304(d) on March 25, 2012 Alex Mansfield, Environmental Director, JRWA, Inc.

alex@jonesriver.org 14 Puritan Lane Marshfield, Massachusetts Tel. 781-585-2322 Dated: March 25, 2012 9