ML13274A707

Entergy'S Answer to Riverkeeper, Inc,'S Consolidated Motion for Leave to File Amended Contention RK-EC-8A and Amended Contention RK-EC-8A (Endangered Aquatic Species)

ML13274A707
Person / Time
Site:	Indian Point
Issue date:	10/01/2013
From:	Bessette P, Dennis W, Glew W, Rund J, Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25133
Download: ML13274A707 (193)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) October 1, 2013 ENTERGYS ANSWER TO RIVERKEEPER, INC.S CONSOLIDATED MOTION FOR LEAVE TO FILE AMENDED CONTENTION RK-EC-8A AND AMENDED CONTENTION RK-EC-8A (ENDANGERED AQUATIC SPECIES)

William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

Entergy Nuclear Operations, Inc. Jonathan M. Rund, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, N.W.

Phone: (914) 272-3202 Washington, D.C. 20004 E-mail: wglew@entergy.com Phone: (202) 739-5738 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: jrund@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. LEGAL STANDARDS ..................................................................................................... 4 A. Legal Standards Governing Admission of Amended Contentions ........................ 4 B. Legal Standards Governing Endangered Species Reviews ................................... 5

1. Endangered Species Act Requirements ..................................................... 5

2. An Agencys Reliance on a NMFS Biological Opinion Is Reviewed Under the Arbitrary and Capricious Standard .......................... 8

3. NEPA Requirements .................................................................................. 9

4. Summary of Riverkeepers Burden to Admit RK-EC-8A ....................... 10 III. AMENDED CONTENTION RK-EC-8A DOES NOT MEET THE NRCS CONTENTION ADMISSIBILITY CRITERIA .............................................................. 11 A. Summary of ESA Section 7 Consultation Process .............................................. 12

1. Initial ESA Section 7 Consultations and December 2010 FSEIS Conclusions .............................................................................................. 12

2. Continued Section 7 Consultations and NMFS Final January 2013 Biological Opinion ................................................................................... 15

a. Continued ESA Consultations and NMFS October 2011 BiOp ............................................................................................. 15

b. NMFS Atlantic Sturgeon Listing and the Reinitiation of Consultations................................................................................ 20

c. NRC Staff Draft FSEIS Supplement............................................ 21

d. NMFS New Draft Biological Opinion and Final Biological Opinion ........................................................................................ 23

e. The NRC Staffs Incorporation of NMFS Biological Opinion in the June 2013 FSEIS Supplement.............................. 26

3. Amended Contention RK-EC-8 ............................................................... 29 B. Amended Contention RK-EC-8A Is Immaterial, Lacks Sufficient Factual Support and Legal Basis, and Fails to Establish a Genuine Dispute on a Material Issue of Law or Fact .............................................................................. 30

1. RK-EC-8A, Basis 1, Is Immaterial, Insufficient to Establish a Genuine Dispute, and Inadequately Supported ........................................ 30

a. Riverkeeper Fails to Provide Sufficient Information Demonstrating that the Staffs Reliance on NMFS BiOp Was Arbitrary and Capricious ..................................................... 30

b. Riverkeeper Fails to Establish that the NRC Staff and NMFS Improperly Ignored Comments Received on the Draft FSEIS Supplement and Draft BiOp .................................... 32

2. RK-EC-8A, Basis 2 Is Immaterial, Insufficient to Establish a Genuine Dispute, and Inadequately Supported ........................................ 46 IV. CONCLUSION ................................................................................................................ 49 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) October 1, 2013 ENTERGYS ANSWER TO RIVERKEEPER, INC.S CONSOLIDATED MOTION FOR LEAVE TO FILE AMENDED CONTENTION RK-EC-8A AND AMENDED CONTENTION RK-EC-8A (ENDANGERED AQUATIC SPECIES)

I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309(h)(1) and the Atomic Safety and Licensing Boards (Board) September 13, 2013 Order,1 Entergy Nuclear Operations, Inc. (Entergy) submits this Answer opposing the Consolidated Motion for Leave to File Amended Contention RK-EC-8A and Amended Contention RK-EC-8A, filed by Riverkeeper, Inc. (Riverkeeper) on August 20, 2013.2 In response to the U.S. Nuclear Regulatory Commission (NRC or Commission)

Staffs issuance of the Volume 4 supplement to its Final Supplemental Environmental Impact Statement (FSEIS),3 Riverkeeper proposes amended Contention RK-EC-8A. That amended contention asserts that this FSEIS Supplement is inadequate because it: (1) fails to consider or address Riverkeepers comments regarding various alleged deficiencies in the January 2013 1

Licensing Board Order (Granting Staffs Motion for an Extension of Time) (Sept. 13, 2013) (unpublished).

2 Riverkeeper, Inc. Consolidated Motion for Leave to File Amended Contention RK-EC-8A and Amended Contention RK-EC-8A (Aug. 20, 2013) (Riverkeeper Motion), available at ADAMS Accession No. ML13232A390.

3 NUREG-1437, Supp. 38, Vol. 4, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report, Supplemental Report and Comment Responses (June 2013) (FSEIS Supplement), available at ADAMS Accession No. ML13162A616.

Biological Opinion (2013 BiOp)4 of the U.S. National Marine Fisheries Service (NMFS),

and in turn, fails to adequately assess impacts to endangered species; and (2) fails to explain how the purportedly new and significant information assessed by the Staff in the FSEIS Supplement affects the Staffs recommendation to the Commission regarding the appropriateness of renewing the Indian Point Nuclear Generating Unit 2 and 3 (IP2 and IP3, respectively) licenses.5 For the reasons discussed below, RK-EC-8A is inadmissible, in that it is immaterial to the NRC Staffs National Environmental Policy Act (NEPA) findings, insufficient to establish a genuine dispute on a material issue of law or fact, and inadequately supported by factual information or expert opinion, as required by 10 C.F.R. § 2.309(f)(1)(iv), (v), and (vi). Contrary to Riverkeepers claim that the Staff relies blindly on NMFS conclusions,6 the Staffs FSEIS Supplement conclusions were the culmination of an extensive, back-and-forth consultation process, throughout which the Staff conducted its own independent analyses of the best available information and developed its own findings and conclusions, in parallel with NMFS review.

The Staff memorialized its independent findings in four detailed biological assessments (BA) submitted to NMFS. NMFS itself issued two lengthy BiOps of 80 and 163 pages.7 The conclusions reached by NMFS in its final BiOp were consistent with and supported the conclusions reached by the Staff in its BAs and Draft FSEIS Supplement. Aside from its conclusory claims of alleged deficiencies, Riverkeeper has presented nothing demonstrating that 4

Endangered Species Act Section 7 Consultation Biological Opinion (Jan. 30, 2013) (2013 BiOp), available at ADAMS Accession No. ML13032A569 (previously provided as Riverkeeper Motion, Attach. 6).

5 Riverkeeper Motion at 7.

6 Id.

7 As discussed below, NMFS issued an initial BiOp in October 2011 pertaining to shortnose sturgeon. It issued a second BiOp in January 2013 pertaining to both shortnose and Atlantic sturgeon that superseded the initial October 2011 BiOp.

the NRC Staff was unreasonable -let alone arbitrary and capriciousin relying on NMFS expert conclusions in the 2013 BiOp.

With regard to Riverkeepers assertion that the FSEIS Supplement failed to consider or address its various comments on the Draft FSEIS Supplement and 2013 BiOp, the record is clear that, putting aside the question of whether the Staff and NMFS have a legal obligation to respond to each and every one of Riverkeepers comments (which they do not), both the Staff and NMFS8 were aware of the issues raised in Riverkeepers comments and reasonably considered and addressed them during the consultation process.

Finally, Riverkeeper has not shown that the NRC Staffs conclusions in the FSEIS Supplement regarding endangered sturgeon constituted new and significant information that was so different from the Staffs conclusions in the FSEIS that the Staff was required to repeat or confirm its prior recommendation to the Commission that the environmental impacts of license renewal are not so great that preserving the license renewal option would be unreasonable. As shown below, the FSEIS Supplement was limited to updating the Staffs analysis of certain potential environmental impacts to aquatic species. It did not supersede the FSEIS in its entirety, as evidenced by the Staffs revisions shown in redline. Thus, any portions not affected by the information discussed in the FSEIS Supplementincluding the Staffs overall recommendation to the Commissionremain in effect and part of the FSEIS. As relevant to the amended contention, the Staffs conclusion in the FSEIS Supplement regarding the overall impact of continued operation on endangered aquatic species is consistent with the conclusion reached in 8

While this Answer focuses primarily on data and conclusions contained in the 2013 BiOp and the FSEIS Supplement, a document very recently made available by the NRC Staff and NMFS confirms that NMFS did in fact consider Riverkeepers comments during the preparation of the 2013 BiOp. See Memorandum from M.

Colligan, NMFS, to J. Bullard, NMFS, Biological Opinion to be Issued to the Nuclear Regulatory Commission (NRC) for the Continued Operation of Indian Point Unit 2 and Unit 3 - Transmittal Memorandum (Jan. 29, 2013) (NMFS Memorandum), available at ADAMS Accession No. ML13268A463 (Attachment 1).

the FSEIS. Therefore, the Staff confirmed its conclusion by not amending it in the FSEIS Supplement. For these reasons, RK-EC-8A fails to meet the NRCs contention admissibility requirements in 10 C.F.R. § 2.309(f)(1) and should be rejected.

II. LEGAL STANDARDS A. Legal Standards Governing Admission of Amended Contentions An intervenor may file amended contentions only with leave of the presiding officer upon a showing of good cause, by demonstrating that the amended contention is: (1) based on information that was not previously available; (2) based on information materially different from information previously available; and (3) submitted in a timely manner based on the availability of the subsequent information.9 A proposed contention also must satisfy, without exception, each of the criteria set out in 10 C.F.R. § 2.309(f)(1)(i) through (vi).10 Failure to meet each of the criteria is grounds for dismissal of a proposed new or amended contention.11 Among other things, the intervenor must demonstrate that the issue raised in the contention is adequately supported by factual information or expert opinion, is material to the findings the NRC must make to support the action that is involved in the proceeding, and provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or 9

See 10 C.F.R. §§ 2.309(f)(2), 2.309(c)(1). Entergy has previously described the contention admissibility standards in some detail in its prior pleadings and, for the sake of efficiency, will not repeat those standards here. See, e.g., Applicants Answer to Riverkeeper, Inc.s Motion For Leave and New Contention Concerning the Consideration of Endangered and Threatened Aquatic Species at 7-9 (Mar. 7, 2011), available at ADAMS Accession No. ML110770579. Rather, the standards most relevant to this amended contention are highlighted here.

10 S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), LBP-10-6, 71 NRC 350, 359 (2010).

11 See Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004). See also Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

fact.12 A dispute is material if its resolution would make a difference in the outcome of the licensing proceeding.13 B. Legal Standards Governing Endangered Species Reviews Although the stated bases for RK-EC-8A focus on the FSEIS Supplement, the amended contention challenges how the NRC Staff implemented and participated in the Endangered Species Act (ESA) consultation process.14 As a result, the legal requirements governing the NRCs review of potential impacts to endangered species are set forth below. These standards define the framework by which to analyze the claims set forth in the amended contentionand ultimately provide the basis for their rejection as a matter of law and fact.

1. Endangered Species Act Requirements Section 7(a)(2) of the ESA requires that the NRC, in consultation with NMFS or the U.S.

Fish and Wildlife Service (FWS) (depending on the species involved15), insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.16 Pursuant to joint NMFS and FWS implementing regulations, an action will jeopardize continued existence of a species only if it appreciably 12 See 10 C.F.R. § 2.309(f)(1)(iv), (v), and (vi).

13 See Summer, LBP-10-6, 71 NRC at 360 (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 & 3),

CLI-99-11, 49 NRC 328, 333-34 (1999)).

14 See Riverkeeper Motion at 8.

15 NMFS is part of the U.S. Department of Commerces National Oceanic and Atmospheric Administration.

NMFS and FWS share responsibilities for administering the ESA. See 50 C.F.R. § 402.01(b). Generally speaking, FWS is responsible for land and freshwater species, while NMFS is responsible for marine and anadromous species.

16 16 U.S.C. § 1536(a)(2). Section 7(a)(4) of the ESA also requires that NRC confer (not consult) with NMFS on any action that is likely to jeopardize the continued existence of a species proposed for listing. Id.

§ 1536(a)(4); 50 C.F.R. § 402.10(a). Conferences are conducted on an informal basis between NRC and NMFS. See 50 C.F.R. § 402.10(c).

diminishes or reduces the likelihood of both the survival and recovery of the species.17 As the Appeal Board in Hartsville held, Section 7(a)(2) of the ESA does not prohibit the NRC from issuing a license for a nuclear power plant because the plant may have a small adverse impact on an endangered or threatened species.18 To ensure compliance with these requirements, the NRC Staff must request information from NMFS regarding whether any listed or proposed species are present in the proposed action area.19 If NMFS determines that listed species may be present in the affected area, the Staff typically will prepare a BA. If the BA concludes that the proposed action may affect listed species or critical habitat, then formal consultation is necessary unless an exception from the formal consultation requirement is applicable.20 The Staff must provide the applicant an opportunity to submit information during the consultation period.21 Additionally, if requested, NMFS must provide a draft BiOp, to the Staff and the applicant, who are then permitted to comment on the draft BiOp.22 Notablyand in contrast to NEPA requirements discussed belowthe ESA does not authorize an opportunity for the public to comment on a draft BiOp or otherwise require public participation in the Section 7 consultation between federal agencies.23 17 50 C.F.R. § 402.02.

18 See Tenn. Valley Auth. (Hartsville Nuclear Plant, Units 1A, 2A, 1B, & 2B), ALAB-463, 7 NRC 341, 360 (1978).

19 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(c).

20 50 C.F.R. § 402.14(a). One such exception applies if the Staff determines, with the written concurrence of NMFS, that the proposed action is not likely to adversely affect any listed species or critical habitat. Id. § 402.14(b)(1) (emphasis added).

21 50 C.F.R. § 402.14(d).

22 See id. § 402.14(g)(5).

23 See, e.g., Natl Assn of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 660 n.6 (2007) (Nor is there any independent right to public comment with regard to consultations conducted under § 7(a)(2).); San Luis &

Delta-Mendota Water Auth. v. Salazar, 760 F. Supp. 2d 855, 957 (E.D. Cal. 2010) (Neither the ESA nor its implementing regulations require an opportunity for public comment or that FWS respond to any comments After concluding formal consultation with the NRC Staff, NMFS must deliver its final BiOp,24 which evaluates the nature and extent of the proposed actions effect on the listed species and presents NMFS opinion on whether the action is likely to jeopardize the continued existence of such listed species.25 The BiOp may include an incidental take statement (ITS) if NMFS determines that the proposed action results in the incidental take of a listed species, but does not jeopardize the continued existence of that species.26 Following the issuance of the BiOp, the NRC Staff must determine whether and in what manner to move forward with the proposed action in light of its Section 7 obligations.27 If NMFS issues a no jeopardy BiOp, then the requirements of Section 7(a)(2) are met, the Staff may proceed with the proposed action.28 As discussed more fully in Section III.A below, NRC and NMFS complied fully with each step of this legal process.

received [on a draft BiOp]. Plaintiffs suggestion that FWS violated the ESA by ignoring comments on the draft BiOp is legally unsustainable.) (citations omitted); Fund for Animals v. Hall, 488 F. Supp. 2d 127, 136 (D.D.C. 2006) (ESAs Section 7 consultation process fails to provide for public comment in the same way that NEPA does.); see also Final Rule, Interagency CooperationEndangered Species Act of 1973, as Amended, 51 Fed. Reg. 19,926, 19,928 (June 3, 1986) (Nothing in section 7 authorizes or requires [NMFS or FWS] to provide for public involvement (other than that of the applicant) in the interagency consultation process.). As discussed below, although NMFS was not required to consider public comments, it nonetheless considered and addressed Riverkeepers comments on the draft 2013 BiOp. See NMFS Memorandum at 9 (While neither the ESA nor the Section 7 regulations, or any other law, requires NMFS to consider Riverkeepers comments, we chose to consider them.).

24 50 C.F.R. § 402.14(e)(3).

25 See id. § 402.14(h)(3).

26 See id. § 402.14(i)(1).

27 Id. § 402.15(a).

28 See Final Rule, Interagency Cooperation - Endangered Species Act of 1973, as Amended, 51 Fed. Reg. at 19,940. Alternatively, if NMFS issues a jeopardy BiOp, but NRC disagrees with this opinion or chooses an alternative not recommended by NMFS, then NRC may move forward based on its own analysis. See id.

2. An Agencys Reliance on a NMFS Biological Opinion Is Reviewed Under the Arbitrary and Capricious Standard The ESA Section 7 interagency consultation process reflects Congresss awareness that expert agencies [such as FWS and NMFS] are far more knowledgeable than other federal agencies about the precise conditions that pose a threat to listed species, and that those expert agencies are in the best position to make discretionary factual determinations about whether a proposed agency action will create a problem for a listed species and what measures might be appropriate to protect the species.29 Congresss recognition of this expertise suggests that Congress intended the action agency [i.e., NRC] to defer, at least to some extent, to the determinations of the consultant agency [i.e., NMFS].30 As such, the NRC need not undertake a separate, independent analysis of the issues addressed in the BiOp.31 Indeed, if such an analysis were required, the expertise of the consultant agency would be seriously undermined.32 When courts review the decision of an action agency, such as the NRC, to rely on a BiOp, the critical question is whether the action agencys reliance was arbitrary and capricious, not whether the BiOp itself is somehow flawed.33 To show that an action agency acted arbitrarily and capriciously in relying on a consultant agencys BiOp, a party must point to new information that the consultant agency did not take into account that calls into question the BiOps factual conclusions.34 Significantly, [i]t does not suffice, when urging an action 29 City of Tacoma v. FERC, 460 F.3d 53, 75 (D.C. Cir. 2006) (emphasis added).

30 Id. (citing Bennett v. Spear, 520 U.S. 154, 169-170 (1997)).

31 Id. at 75-76 (quoting Aluminum Co. of Am., 175 F.3d at 1161).

32 Id. at 76.

33 Id. (citing Aluminum Co. of Am. v. Admr, Bonneville Power Admin., 175 F.3d 1156, 1160 (9th Cir. 1999);

Pyramid Lake Paiute Tribe v. U.S. Dept of Navy, 898 F.2d 1410, 1415 (9th Cir. 1990); Stop H-3 Assn v.

Dole, 740 F.2d 1442, 1460 (9th Cr. 1984) (emphasis added)).

34 Id. (citing Pyramid Lake, 898 F.2d at 1415; Stop H-3 Assn, 740 F.2d at 1459-60).

agency to reject the BiOp of a consultant agency, simply to reargue factual issues the consultant agency already took into consideration.35 When NMFS prepares a BiOp in the course of another agencys administrative proceeding, the only means of challenging the substantive validity of the BiOp is on review of the NRCs decision in the courts of appeals.36 Thus, to the extent Riverkeeper challenges the substance of NMFS BiOp, as opposed to the NRC Staffs reliance on the BiOp, such a challenge may not be considered in this license renewal proceeding.

3. NEPA Requirements Separate from the requirements of the ESA, NEPA requires that the NRC consider the environmental consequences of its licensing actions more generally. NEPA, however, does not prohibit adverse environmental effects, but instead, imposes procedural requirements on agencies, requiring them to take a hard look at the environmental impact of the proposed action.37 This hard look is subject to a rule of reason.38 Unlike the ESA, which does not afford an opportunity for the public to participate during the interagency consultation process, NEPA requires the NRC to consider and address opposing 35 Id. (citing Pyramid Lake, 898 F.2d at 1415-16; Stop H-3 Assn, 740 F.2d at 1459-60) (emphasis added).

36 Id. When prepared in the course of another agencys administrative proceeding, a NMFS BiOp has no legal significance when separated from the action agencys decision and order. City of Tacoma v. National Marine Fisheries Service, 383 F.Supp.2d 89, 92 (D.D.C. 2005). The Hobbs Act confers jurisdiction in courts of appeals to review final orders of the NRC that involve the granting, suspension, revocation or amendment of any license or construction permit. See 28 U.S.C. § 2342(4). Thus, the only avenue for challenging the merits of a NMFS BiOp prepared in the course of an NRC licensing proceeding is before the courts of appeals. Given the amended contentions focus on the NRC Staffs alleged failure to respond to Riverkeepers comments, rather than on the merits of NMFS BiOp, Riverkeeper appears to understand this legal principle.

37 See La. Energy Servs., L.P. (Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 87-88 (1998). See also Natural Res. Def. Council v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972); La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 726 (2005).

38 La. Energy Servs., L.P. (Natl Enrichment Facility), LBP-06-8, 63 NRC 241, 258-59 (2006) (citing Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 836 (1973)).

viewpoints expressed in public comments during the agencys environmental review process.39 Like other agency responsibilities under NEPA, however, the duty to respond to comments is governed by the rule of reason. In particular, an agencys obligation to respond to public comment is limited.40 Thus, [n]ot every comment need be published in the final EIS

[environmental impact statement].41 Nor does NEPA require an agency to set forth at full length the views with which it disagrees.42 NEPA also does not obligate an agency to conduct new studies in response to issues raised in the comments or to resolve conflicts raised by opposing viewpoints.43 The NRCs environmental regulations also address the potential need to supplement an FSEIS before the agency takes the proposed action. Specifically, pursuant to 10 C.F.R.

§51.92(a), the NRC Staff must supplement an FSEIS if there are (1) substantial changes in the proposed action that are relevant to environmental concerns, or (2) significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. In order to be significant, new information must present a seriously different picture of the environmental impact of the proposed project from what was previously considered.44

4. Summary of Riverkeepers Burden to Admit RK-EC-8A Riverkeepers challenges to the adequacy of the NRC Staffs FSEIS Supplement fall into two major categories: (1) those that implicate the Staffs implementation of the ESA 39 See, e.g., California v. Block, 690 F.2d 753, 773 (9th Cir. 1982) (Agencies are obliged to provide a meaningful reference to all responsible opposing viewpoints concerning the agencys proposed decision.)

(internal quotation marks and citations omitted).

40 Id.

41 Id. (citing Conservation Law Found., Inc. v. Andrus, 623 F.2d 712, 717 (1st Cir. 1979)).

42 Id. (citing Comm. for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 787 (D.C. Cir. 1971)).

43 Id. (citing Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 554 (9th Cir. 1977)).

44 Hydro Res., Inc. (2929 Coors Road, Suite 101, Albuquerque, N.M. 87120), CLI-99-22, 50 NRC 3, 14 (1999)

(citing Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987)); accord Wisconsin v. Weinberger, 745 F.2d 412, 420 (7th Cir. 1984)).

consultation process; and (2) those that implicate the Staffs duty under NEPA to respond to comments and update its ultimate license renewal recommendation. To demonstrate the existence of a material dispute with regard to the ESA-based challenges, Riverkeeper must establish that the Staffs reliance on NMFS conclusions was arbitrary and capricious. With regard to the NEPA-based challenges, Riverkeeper must provide specific facts showing that:

(1) the Staff inappropriately ignored Riverkeepers comments on the Draft FSEIS Supplement and NMFS BiOp; and (2) the Staffs FSEIS Supplement conclusions regarding endangered sturgeon constituted new and significant information that was so different from the previous FSEIS conclusions that the Staff was required to update its prior ultimate FSEIS recommendation to the Commission regarding Indian Point Energy Centers (IPEC) license renewal. As discussed below in Section III, Riverkeeper has failed to carry its burden.

III. AMENDED CONTENTION RK-EC-8A DOES NOT MEET THE NRCS CONTENTION ADMISSIBILITY CRITERIA As shown below, NMFS and the NRC engaged in an extensive, lengthy consultation process that fully complied with all applicable statutory and regulatory requirements, and the NRC Staff reasonably relied on the expert conclusions reached in the NMFS BiOp, which were consistent with its own assessments, in preparing the FSEIS Supplement. During the consultation process and the preparation of the FSEIS Supplement, the NRC Staff and NMFS satisfactorily and reasonably considered and addressed all issues identified by Riverkeeper.

Moreover, the FSEIS Supplement did not supersede the FSEIS in its entirety, as evidenced by the Staffs revisions shown in redline. As relevant to the amended contention, the conclusions in the FSEIS Supplement regarding the overall impact of continued operation on endangered aquatic species is consistent with the conclusion reached in the FSEIS. Any portions of the FSEIS not affected by the information discussed in the FSEIS Supplementincluding the Staffs overall recommendation to the Commission that the adverse environmental impacts of license renewal for IP2 and IP3 are not so great that preserving the option of license renewal for decisionmakers would be unreasonable45remain in effect and part of the FSEIS.

For these reasons and as discussed in detail below, RK-EC-8A is inadmissible, in that it is immaterial to the Staffs NEPA findings, insufficient to establish a genuine dispute on a material issue of law or fact, and inadequately supported by factual information or expert opinion, as required by 10 C.F.R. § 2.309(f)(1)(iv), (v), and (vi).

A. Summary of ESA Section 7 Consultation Process Although the stated bases for RK-EC-8A focus on the NRC Staffs FSEIS Supplement, the amended contention fundamentally challenges whether the NRC Staff adequately implemented and participated in the ESA consultation process.46 Because the details of that substantial consultation process have not been fully briefed in this proceeding, a description of the process is presented below.

1. Initial ESA Section 7 Consultations and December 2010 FSEIS Conclusions Approximately six years ago, as required by statute and regulation,47 and in support of its review of the license renewal application (LRA) for IP2 and IP3, the NRC Staff requested that NMFS provide information on federally-listed endangered or threatened species, as well as proposed candidate species.48 In October 2007, NMFS responded that the federally-listed endangered shortnose sturgeon and the then-candidate species Atlantic sturgeon are present in 45 NUREG-1437, Supp. 38, Vol. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report, Main Report and Comment Responses at 9-8 (Dec. 2013) (FSEIS) (NYS00133B).

46 See Riverkeeper Motion at 8.

47 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(c).

48 FSEIS at 4-57 (NYS00133B).

the Hudson River.49 Consistent with 50 C.F.R. § 402.14(a), the NRC Staff then initiated ESA consultations with NMFS in December 2008 on the shortnose sturgeon, upon publication of the draft supplemental environmental impact statement and the Staffs original BA.50 The BA evaluated the impacts of continued IPEC operation to shortnose sturgeon through entrainment, impingement, and thermal impacts.51 Based on the life history of the shortnose sturgeon, the location of spawning grounds within the Hudson River, the patterns of movement for eggs and larvae, and available data from past entrainment monitoring, the Staff concluded that IPECs continued operation is not likely to adversely affect the population of shortnose sturgeon in the Hudson River through entrainment.52 The Staff also concluded that license renewal could adversely affect the population of shortnose sturgeon in the Hudson River through impingement and thermal impacts, although it could not, at that time, quantify the extent to which the population could be affected based on available data.53 The Staff provided its BA and conclusions to NMFS in December 2008, requesting NMFS review and concurrence.54 During 2009, NRC and NMFS continued to correspond as part of the ongoing consultation process.55 The Staff also provided Entergy an opportunity to submit information on 49 Id. at App. E at E-77 to -79 (NYS00133I) (Letter from M. Colligan, NMFS, to NRC, 72 FR 45075-6 (August 10, 2007) (Oct. 4, 2007). A candidate species is a species being considered by [NMFS] for listing as endangered or threatened species but not yet the subject of a proposed rule. 50 C.F.R. § 402.12(d).

50 FSEIS Supplement at 25. Given that the Atlantic sturgeon was not listed as an endangered or threatened species at the time the NRC Staff initially contacted NMFS in 2007, the two agencies did not engage in ESA Section 7 consultations on that species at that time.

51 NUREG-1437, Supp. 38, Vol. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment and Main Report at App. E (Dec. 2008) (NYS00132C).

52 Id. at E-96.

53 Id. at E-100.

54 See, e.g., Letter from D. Wrona, NRC, to M. Colligan, NMFS, Biological Assessment for License Renewal of the Indian Point Generating Unit Nos. 2 and 3 at 2 (Dec. 22, 2008), available at ADAMS Accession No. ML083450723.

55 See, e.g., Email from A. Stuyvenberg, NRC, to J. Crocker, NMFS (Mar. 26, 2009), available at ADAMS Accession No. ML090850187 (discussing additional information requested by NMFS).

shortnose sturgeon impingement, as required by 50 C.F.R. § 402.14(d). In response, Entergy provided additional actual and estimated shortnose sturgeon impingement data for the years 1974 to 1990 to the NRC.56 In December 2010, the NRC Staff issued its FSEIS and a Revised BA, which addressed questions submitted by NMFS regarding the status of the shortnose sturgeon and incorporated the additional data provided by Entergy on shortnose sturgeon impingement.57 In the Revised BA, the NRC Staff stated, based on the best available information, that impingement and entrainment resulting from continued operation of IP2 and IP3 are not likely to jeopardize the continued existence of the endangered shortnose sturgeon in the Hudson River.58 The Staff also concluded that continued operations could potentially adversely affect the population of shortnose sturgeon in the Hudson River due to the thermal effects of once-through cooling.59 By letter dated December 10, 2010, the NRC transmitted its Revised BA to NMFS and requested NMFS concurrence with its conclusions.60 56 Summary of Telephone Conference Call Held on May 11, 2009, Between the U.S. Nuclear Regulatory Commission and Entergy Nuclear Operations, Inc., Concerning Endangered Species Act Consultation Data (June 11, 2009), available at ADAMS Accession No. ML091420036; Letter from F. Dacimo, Entergy, to NRC, Request for Additional Information Related to License Renewal Indian Point Nuclear Application Environmental Report - Impingement Data (Nov. 24, 2009), available at ADAMS Accession No. ML093420528; Letter from F. Dacimo, Entergy, to NRC, Transmission of Additional Requested Information Regarding Sturgeon Impingement Data (July 1, 2009), available at ADAMS Accession No. ML091950345.

57 See FSEIS at 4-57 to 4-60 (NYS00133B); see also NRC Biological Assessment, Indian Point Nuclear Generating Plant, Units 2 and 3, License Renewal (Dec. 2010), available at ADAMS Accession No. ML102990046 (Revised BA) (Attachment 2). At the time the FSEIS was published in December 2010, the NRC and NMFS had not yet completed the consultation for the shortnose sturgeon.

58 Revised BA at 13.

59 Id. at 14-15.

60 Letter from D. Wrona, NRC, to M. Colligan, NMFS, Revised Biological Assessment for License Renewal of the Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 (Dec. 10, 2010), available at ADAMS Accession No. ML102990043. Consistent with its conclusions in the Revised BA, the FSEIS found that the impacts of IPECs continued operation on the shortnose sturgeon and the Atlantic sturgeon would be SMALL. FSEIS at 4-60 (NYS00133B). The FSEIS also noted that ESA Section 7 consultations with NMFS were ongoing and that NMFS would issue a BiOp if it concluded that continued operations could adversely affect the shortnose sturgeon. Id.

After the Staff published the FSEIS, in February 2011, Riverkeeper moved to admit a new contention (RK-EC-8).61 Entergy and the NRC Staff opposed the admission of RK-EC-8 on timeliness and substantive grounds.62 In a July 6, 2011 Order, the Board admitted RK-EC-8 as proposed by Riverkeeper.63

2. Continued Section 7 Consultations and NMFS Final January 2013 Biological Opinion

a. Continued ESA Consultations and NMFS October 2011 BiOp In July 2011, the Staff transmitted to NMFS a supplement to its Revised BA, as a result of more recent thermal studies and modeling completed by Entergy in 2008 and 2011.64 Based on the more recent data, the NRC Staff revised its conclusion on thermal impacts and found that heated discharge during IPECs license renewal term is not likely to adversely affect shortnose sturgeon.65 The Staff also revised its conclusion regarding the overall potential for adverse impacts on sturgeon resulting from license renewal (including impingement, entrainment, and 61 Riverkeeper Inc. Consolidated Motion for Leave to File a New Contention and New Contention Concerning NRC Staffs Final Supplemental Environmental Impact Statement (Feb. 3, 2011), available at ADAMS Accession No. ML110410362. The scope of the original contention is fully discussed in Entergy Motion to Dismiss Riverkeeper Contention RK-EC-8 (Endangered and Threatened Aquatic Species) as Moot (July 17, 2013), available at ADAMS Accession No. ML13198A353 (Entergy Motion to Dismiss).

62 Applicants Answer to Riverkeeper, Inc.s Motion for Leave and New Contention Concerning the Consideration of Endangered and Threatened Aquatic Species (Mar. 7, 2011) (Entergy Answer); NRC Staffs Answer to Riverkeeper, Inc.s Motion for Leave to File a New Contention, and New Contention EC-8 Concerning NRC Staffs Final Supplemental Environmental Impact Statement (Mar. 7, 2011) (NRC Staff Answer), available at ADAMS Accession No. ML110670290. Among other things, Entergy and NRC asserted that the ESA did not require that the consultation process be complete at the time the FSEIS was issued, the NRC Staff need not supplement the FSEIS once the ESA consultation process is complete, and the NRC Staff did not violate any time restrictions in the preparation of its BA. Entergy Answer at 14-20; NRC Staff Answer at 12-15, 17-19.

63 Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) at 71 (July 6, 2011) (unpublished).

64 NRC Supplement to Revised Biological Assessment, Indian Point Nuclear Generating Plant Units 2 and 3, License Renewal (July 2011), available at ADAMS Accession No. ML11203A100 (Attachment 3).

65 Id. at 6.

thermal impacts): [T]he NRC staff now finds that license renewal [of IP2] and [IP3] is not likely to adversely affect the Hudson River population of shortnose sturgeon.66 Consistent with 50 C.F.R. § 402.14(g)(5), NMFS issued a 72-page draft BiOp on August 26, 2011. In its transmittal letter to the NRC Staff, and in response to certain concerns raised to NMFS by the New York State Department of Environmental Conservation (NYSDEC),67 NMFS questioned whether initiating formal consultations were appropriate at that time, given the pending proceeding before NYSDEC regarding IPECs request for a Clean Water Act Section 401 Water Quality Certification.68 The draft BiOp noted that NMFS based its findings on a number of sources, including information provided in the Staffs December 2010 Revised BA, the December 2010 FSEIS, State Pollutant Discharge Elimination System (SPDES) permits and Water Quality Certifications issued by New York State, and recent thermal plume information submitted to NMFS by Entergy.69 The draft BiOp included an extensive discussion of IPECs cooling water intake system,70 the life history and current status of the shortnose sturgeon,71 the environmental 66 Id.

67 Letter from C. Amato, NYSDEC, to P. Kurkul, NMFS, Biological Opinion Under Section 7 of the Federal Endangered Species Act for License Renewal of Indian Point Nuclear Generating Plant, Units 2 and 3 (Aug.

26, 2011), available at ADAMS Accession No. ML11263A168.

68 Letter from P. Kurkul, NMFS, to D. Wrona, NRC, Draft Biological Opinion for License Renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3 at 1 (Aug. 26, 2011), available at ADAMS Accession No. ML11249A012 (previously provided as Riverkeeper Motion, Attach. 1).

69 NMFS Endangered Species Act Section 7 Consultation Draft Biological Opinion at 4 (the original document is not paginated; page citations for this document refer to the .pdf file page number in the ADAMS version)

(Aug. 26, 2011), available at ADAMS Accession No. ML11249A012 (previously provided as Riverkeeper Motion, Attach. 1). NMFS also referenced conference calls with Entergy on June 20, June 22, and June 29, 2011 to discuss shortnose sturgeon intakes and emails from Entergy responding to NMFS inquiries regarding the thermal plume on July 8, July 25, and August 5, 2011. Id.

70 Id. at 6-14.

71 Id. at 14-26.

baseline,72 the potential effects of license renewal (through impingement, entrainment, thermal discharge, and availability of prey) on shortnose sturgeon,73 the cumulative effects of fishing activities, pollution, climate change, research activities, and coastal development.74 Ultimately, NMFS concluded, [a]fter reviewing the best available information . . . the proposed action may adversely affect but is not likely to jeopardize the continued existence of shortnose sturgeon.75 As permitted by 50 C.F.R. § 402.14(g)(5), both Entergy and the NRC Staff submitted comments on the draft BiOp to NMFS in September 2011.76 Among other comments, Entergy stated that NRCs proposed action is to renew the operating licenses for IP2 and IP3 as set forth in Entergys LRA, which represents Indian Points current operating configuration, and therefore, consultation must proceed on the assumption that IP2 and IP3 would continue to operate under the terms of their existing authorizations, including those relating to the operation of their cooling water intake structures and cooling systems.77 The Staff took a similar position, explaining that, notwithstanding the uncertain outcomes in New York State proceedings related to IPECs Water Quality Certification and SPDES permit, the Staff was required to move 72 Id. at 26-35. The environmental baseline includes the past and present impacts of all state, federal or private actions and other human activities in the action area, the anticipated impacts of all proposed federal projects in the action area that have already undergone formal or early Section 7 consultation, and the impact of state or private actions that are contemporaneous with the consultation in process. Id. at 26.

73 Id. at 35-49.

74 Id. at 49-50.

75 Id. at 55.

76 See Letter from E. Zoli, Counsel for Entergy, to D. Wrona, NRC, Draft Biological Opinion for License Renewal for Indian Point Units 2 and 3, (Sept. 6, 2011), available at ADAMS Accession No. ML11257A103 (Entergy Sept. 6, 2011 Comments); NRC Staff Comments on NMFSs August 26, 2011 Draft Biological Opinion for License Renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3 (Sept. 6, 2011),

available at ADAMS Accession No. ML11249A211; Letter from D. Wrona, NRC, to P. Kurkul, NMFS, National Marine Fisheries Service Letter Dated August 26, 2011, Regarding the Endangered Species Act, Section 7 Consultation for the Proposed License Renewal of Indian Point Nuclear Generating Plant Units 2 and 3, (Sept. 20, 2011), available at ADAMS Accession No. ML11298A102 (NRC Staff Sept. 20, 2011 Comments).

77 Entergy Sept. 6, 2011 Comments at 2.

forward with its review of Entergys LRA as presented.78 The Staff assured NMFS that when the state proceedings are resolved, the Staff would consider the effect of those outcomes on IPECs license renewal, including reinitiating consultations with NMFS if required.79 Although NMFS did not solicit comments from the public (and the Section 7 consultation procedures do not authorize such comments), Riverkeeper submitted comments to NMFS on the draft BiOp.80 In particular, Riverkeeper asserted that: (1) NMFS should wait to issue a final BiOp, pending the final outcome of the proceeding before NYSDEC regarding IPECs Water Quality Certification; (2) NMFS failed to assess the cumulative impacts to shortnose sturgeon from all power plants (not just IPEC) in the Hudson River; (3) NMFS failed to consider the impacts of radioactive groundwater contamination from IPEC on shortnose sturgeon; (4) NMFS failed to consider the potential impacts of the IPEC Unit 1 water intake structure on shortnose sturgeon; and (5) NMFS failed to assess the efficacy of closed-cycle cooling as a reasonable and prudent measure at IPEC.81 As discussed below, NMFS addressed several of the issues raised in Riverkeepers comments in the final 2011 BiOp.

On October 14, 2011, NMFS issued a final, 80-page BiOp in accordance with 50 C.F.R.

§ 402.14, concluding the ESA Section 7 consultation process for shortnose sturgeon.82 Based on information from the Staffs Revised BA, FSEIS, New York State permits, and information submitted to NMFS by Entergy and other sources, and consistent with the conclusion reached in its draft BiOp, NMFS concluded in the final 2011 BiOp that the continued operation of IP2 and 78 NRC Staff Sept. 20, 2011 Comments at 2.

79 Id.

80 Letter from D. Brancato, Riverkeeper, to NMFS, Draft Biological Opinion for License Renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3 (Sept. 15, 2011), available at ADAMS Accession No. ML13232A391 (previously provided as Riverkeeper Motion, Attach. 2).

81 Id. at 2-9.

82 FSEIS Supplement at 26.

IP3 during the renewal period may adversely affect but is not likely to jeopardize the continued existence of shortnose sturgeon.83 In its transmittal letter to NRC, NMFS addressed Riverkeepers comment regarding the pending state proceedings.84 NMFS explained that the Staff would reinitiate consultation with NMFS if there were a change in IPEC operations resulting from the hearings on the SPDES permit and Water Quality Certification or the pending hearings before this Board.85 In its final 2011 BiOp, NMFS addressed several other issues raised in Riverkeepers comments, including an analysis of post-2000 data regarding the cumulative impact of the three other power plants operating on the Hudson River on the shortnose sturgeon.86 NMFS noted that the number of shortnose sturgeon impinged at those plants has been very low since 2000 and that no sturgeon larvae have been observed in entrainment samples from those facilities since 2000.87 NMFS also considered the potential impact of radionuclides discharged from IPEC on the shortnose sturgeonanother issue raised by Riverkeeper. Citing a 2009 NYSDEC report and data from Entergys Radiological Environmental Monitoring Program, NMFS concluded that the effects to shortnose sturgeon from radionuclides would be insignificant and discountable.88 NMFS also discussed the potential impact that the Unit 1 intake structure would have on shortnose sturgeon.89 NMFS noted that there was a potential for up to six shortnose sturgeon to 83 Letter from P. Kurkul, NMFS, to D. Wrona, NRC, Biological Opinion for License Renewal of the Indian Point Generating Unit Nos. 2 and 3 at 61 (Oct. 14, 2011), available at ADAMS Accession No. ML11287A313 (previously provided as Riverkeeper Motion, Attach. 3).

84 Id. at 1.

85 Id. NMFS also acknowledged receiving comments from the NRC, Entergy, New York State, and Riverkeeper.

Id. at 2.

86 Id. at 24-25.

87 Id.

88 Id. at 51.

89 Id. at 62.

be impinged at the Unit 1 intakes during the renewal period and factored that into its impact assessment and ITS.90

b. NMFS Atlantic Sturgeon Listing and the Reinitiation of Consultations Given the Atlantic sturgeons status as a candidate (i.e., not formally listed) for endangered or threatened status in December 2008, the Staff and NMFS did not engage in formal consultations on that species at that time. In February 2012, however, NMFS listed five distinct population segments (DPS) of the Atlantic sturgeon as endangered.91 Consequently, pursuant to 50 C.F.R. § 402.14(a), in May 2012, the NRC Staff submitted a new BA to NMFS, along with a request to reinitiate Section 7 consultations for the newly-listed Atlantic sturgeon.92 Based on impingement data from 1975 to 1990, the Staff found that, although some impingement of juvenile Atlantic sturgeon occurs, migrating adults should be able to avoid IPECs low intake velocities, and the installation of modified Ristroph screens installed in the early 1990s should reduce impingement damage and mortality.93 The Staff also considered Entergys 2011 thermal plume study in concluding that the thermal effluent from IPEC is not likely to have any observable adverse effects on Atlantic sturgeon.94 With regard to the impact on Atlantic sturgeon of potential radionuclide discharges to the Hudson River (an issue raised by Riverkeeper), the Staff concluded that such impacts would, as with the shortnose 90 Id.

91 FSEIS Supplement at 27. In the Hudson River near IPEC, Atlantic sturgeon primarily belong to the New York Bight DPS. Id.

92 Id.

93 NRC Biological Assessment for Reinitiation of Section 7 Consultation for the Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 Due to Listing of Atlantic Sturgeon at 3-5, 6 (May 2012), available at ADAMS Accession No. ML12138A388 (Attachment 4).

94 Id. at 5.

sturgeon, be insignificant.95 Ultimately, the Staffs 2012 new BA concluded that, if approved, the continued operation of IP2 and IP3 during the renewal period may affect, but is not likely to adversely affect, the Atlantic sturgeon.96

c. NRC Staff Draft FSEIS Supplement On June 26, 2012, the NRC Staff issued a Draft FSEIS Supplement for public comment.97 The Draft FSEIS Supplement included the Staffs revised conclusion regarding thermal impacts to shortnose sturgeon, based on the Staffs own analysis of Entergys 2011 thermal plume study and NMFS 2011 BiOp.98 The Staff concluded that the discharge resulting from the proposed IP2 and IP3 license renewal would have SMALL impacts on the shortnose sturgeon.99 The Staffs overall conclusion from the FSEIS that the impacts of continued IPEC operations on shortnose sturgeon would be SMALL remained unchanged.100 The Draft FSEIS Supplement also noted that the Staff had reinitiated consultations with NMFS on the Atlantic sturgeon and that the Staff would consider the results of that consultation as appropriate.101 Eight organizations, including Riverkeeper, NYSDEC, and NMFS submitted comments on the Draft FSEIS Supplement during the public comment period, which closed on August 20, 2012.102 As relevant to RK-EC-8A, Riverkeeper criticized the Draft FSEIS Supplement on the 95 Id. at 5.

96 Id. at 6.

97 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supp. 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment (June 2012) (Draft FSEIS Supplement), available at ADAMS Accession No. ML12174A244.

98 Id. at 23-24. In the FSEIS, the Staff had initially indicated that it could not determine the potential impacts of thermal discharges on shortnose and Atlantic sturgeon without additional studies. FSEIS at 4-58 (NYS00133B).

99 Draft FSEIS Supplement at 24.

100 FSEIS at 4-60 (NYS00133B) 101 Draft FSEIS Supplement at 26.

102 Id., App. A at A-1 to A-2.

grounds that the Staff merely summarized the sequence and outcome of the consultation process for the shortnose sturgeon, without any meaningful consideration of NMFS opinions and conclusions.103 Riverkeeper also challenged the Staffs apparent decision to conclude its NEPA review of the IPEC LRA without the benefit of NMFS independent and highly critical final assessment on the potential impacts to Atlantic sturgeon.104 In support of its comments, Riverkeeper submitted a memorandum from its biologist consultants, Pisces Conservation Ltd.

Notably, Pisces acknowledged that the NRC Staffs opinion that the potential impact of extended operation on the shortnose sturgeon would be SMALL does not seem unreasonable.105 Thus, Riverkeepers own consultants expressed agreement with the Staffs ultimate conclusion regarding potential impacts on the shortnose sturgeon.

As relevant to the amended contention, NYSDECs comments criticized the out of date entrainment and impingement data relied on by the Staff,106 an issue which the Staff had previously addressed in the FSEIS but which was not challenged.107 NMFS also submitted comments on the Draft FSEIS Supplement.108 NMFS indicated that it had no substantive comments on the Draft FSEIS Supplement and that the Staffs description of the information that has become available since the FSEIS was published in 103 Letter from D. Brancato, Riverkeeper, to NRC, Riverkeeper, Inc.s Comments on the U.S. Nuclear Regulatory Commission's Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Vol. 4, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Docket Nos. 50-247 and 50-286 (June 2012) at 7 (Aug. 20, 2012), available at ADAMS Accession No. ML12236A207 (Riverkeeper Aug. 20, 2012 Comments) (previously provided as Riverkeeper Motion, Attach. 8).

104 Id. at 11.

105 Id., Attach. A, § 4.

106 FSEIS Supplement, App. A at A-21 to A-23.

107 See, e.g., FSEIS at A-62.

108 Id., App. A at A-16.

December 2010 was consistent with our understanding of the available information.109 NMFS further noted that the Staffs description of the consultation process was complete and accurate.110

d. NMFS New Draft Biological Opinion and Final Biological Opinion In parallel with the NRCs efforts to supplement the FSEIS, NMFS issued a 144-page new draft BiOp in accordance with 50 C.F.R. § 402.14(g)(5), addressing the impacts of license renewal on both the shortnose and Atlantic sturgeon on October 26, 2012.111 The draft BiOp analyzed information from a variety of sources, including a report regarding impingement of Atlantic and shortnose sturgeon submitted by Entergy to NMFS in July 2012.112 The new draft BiOp concluded that extended operation may adversely affect but is not likely to jeopardize the continued existence of shortnose sturgeon or the New York Bight DPS of Atlantic sturgeon.113 The NRC Staff and Entergy again submitted comments on the draft BiOp, as permitted by 50 C.F.R. § 402.14(g)(5).114 The Staffs comments did not question NMFS substantive conclusions and were primarily editorial in nature.115 Entergy submitted some clarifying comments, and expressed its overall agreement with NMFS conclusions.116 109 Id.

110 Id.

111 NMFS Endangered Species Act Section 7 Consultation Draft Biological Opinion (Oct. 26, 2012), available at ADAMS Accession No. ML12300A408 (previously provided as Riverkeeper Motion, Attach. 4).

112 Id. at 6.

113 Id. at 117.

114 Email from D. Logan, NRC, to J. Crocker, NMFS, transmitting the NRCs and Entergys comments on the Draft biological opinion (Nov. 9, 2012), available at ADAMS Accession No. ML12314A415.

115 Id.

116 In particular, Entergy agreed that IPECs continued operation, as it is currently operated under existing approvals: (1) is not likely to jeopardize the continued existence of shortnose sturgeon or the New York Bight DPS of Atlantic sturgeon; (2) is not likely to adversely affect the Gulf of Maine or Chesapeake Bay DPS of Atlantic sturgeon; and (3) will have no effect on critical habitats for either species. Letter from E. Zoli, Riverkeeper also submitted comments to NMFS on November 23, 2012.117 In addition to reiterating many of the comments raised in its September 15, 2011 letter to NMFS, Riverkeeper raised two additional comments. Riverkeeper claimed: (1) there was no basis for NMFS to exempt the take of shortnose and Atlantic sturgeon, because any impacts on these species may have noticeable affects; and (2) the efficacy and sufficiency of NMFS Conservation Recommendations related to the impact of IPEC on sturgeon were questionable.118 Consistent with 50 C.F.R. § 402.14, NMFS submitted its final BiOp to the NRC on January 30, 2013. The 2013 BiOp included 163 pages of NMFS detailed analysis of the potential impacts on both the shortnose sturgeon and Atlantic sturgeon and superseded NMFS earlier October 2011 BiOp.119 In terms of process, NMFS confirmed that its BiOp was based on the plants current configuration and that if a new SPDES permit or Water Quality Certification were issued, NRC and NMFS would evaluate the need to reinitiate consultations.120 In terms of substance, NMFS again discussed entrainment and impingement impacts from other Hudson River plants on the shortnose and Atlantic sturgeon. Specifically, consistent with its 2011 BiOp, NMFS concluded that no sturgeon larvae had been observed in entrainment samples from those facilities since 2000 and that the number of impinged shortnose sturgeon has been very low since 2000.121 NMFS also indicated that the Hudson River power plants had Counsel for Entergy, to D. Wrona, NRC, Draft Biological Opinion for Indian Point Units 2 and 3 at 1 (Nov. 9, 2012), available at ADAMS Accession No. ML12347A085.

117 Letter from D. Brancato, Riverkeeper, to NMFS, Riverkeeper Comments on Draft Biological Opinion for License Renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3 (Nov. 23, 2012), available at ADAMS Accession No. ML13122A370 (previously provided as Riverkeeper Motion, Attach. 5).

118 Id. at 2-14.

119 2013 BiOp at 8.

120 Id.

121 Id. at 43-44.

reported very few interactions with Atlantic sturgeon since 2000.122 With regard to potential exposure to radionuclides, NMFS found that, while shortnose and Atlantic sturgeon may be exposed to radionuclides originating from IPEC and other sources, any exposure is not likely to be at levels that would affect the health or fitness of any individual shortnose or Atlantic sturgeon.123 NMFS concluded that the effects on shortnose and Atlantic sturgeon from radionuclides would be insignificant and discountable.124 NMFS issuance of its 2013 BiOp concluded the formal consultation for both species.125 Ultimately, NMFS confirmed its initial conclusion, stating that:

[T]he continued operation of Indian Point Unit 2 is likely to adversely affect but is not likely to jeopardize the continued existence of shortnose sturgeon or the New York Bight, Gulf of Maine or Chesapeake Bay DPS of Atlantic sturgeon. It is also NMFS biological opinion that the continued operation of Indian Point Unit 3 is likely to adversely affect but is not likely to jeopardize the continued existence of shortnose sturgeon or the New York Bight, Gulf of Maine or Chesapeake Bay DPS of Atlantic sturgeon. No critical habitat is designated in the action area; therefore, none will be affected by the proposed actions.126 The 2013 BiOp also includes an ITS that applies to both IP2 and IP3, which exempts the impingement of a certain number of shortnose and New York Bight DPS Atlantic sturgeon from January 30, 2013 through the proposed period of extended operation.127 It further identifies five discretionary reasonable and prudent measures that NMFS believes are appropriate to minimize or monitor impacts of incidental take of shortnose and Atlantic sturgeon.128 In 122 Id. at 44.

123 Id. at 108.

124 Id.

125 Letter from J. K. Bullard, to A. Hull, Biological Opinion for Continued Operations of Indian Point Nuclear Generating Unit Nos. 2 and 3 at 3 (Jan. 30, 2013), available at ADAMS Accession No. ML13032A569 (previously provided as Entergy Motion to Dismiss, Attach. 1).

126 2013 BiOp at 126.

127 Id. at 127-32.

128 Id. at 132-33.

addition, the 2013 BiOp lists eight terms and conditions that the NRC Staff must ensure that Entergy complies with in order to be exempt from the prohibitions of the ESA.129

e. The NRC Staffs Incorporation of NMFS Biological Opinion in the June 2013 FSEIS Supplement In February 2013, the NRC Staff notified the Board and the parties of its intention to issue a final FSEIS Supplement on or before April 30, 2013.130 Notwithstanding the Staffs notificationand the closure of the public comment period eight months earlier in August 2012three months later, Riverkeeper submitted supplemental comments on the Staffs Draft FSEIS Supplement.131 Its supplemental comments were, however, limited to summarizing and attaching the November 23, 2012 comments it had submitted to NMFS on the October 2012 draft BiOp.132 In other words, Riverkeeper provided no new information in its April 2013 submission.

Riverkeeper acknowledged that the Draft FSEIS Supplement comment period was no longer open and that in fact, NRC expects to issue a finalized FSEIS supplement imminently.133 At around the same time, in March 2013, NYSDEC submitted a letter to the NRC requesting that NMFS 2013 BiOp and ITS be remanded to NMFS for further analysis and evaluation.134 NYSDEC criticized the 2013 BiOp on the grounds that: (1) IPECs continued 129 Id. at 133-37.

130 NRC Staffs Twelfth Status Report in Response to the Atomic Safety and Licensing Boards Order of February 16, 2012 at 1 (Feb. 1, 2013); available at ADAMS Accession No. ML13032A568.

131 Letter from D. Brancato, Riverkeeper, to C. Bladey, NRC, Riverkeeper, Inc.s Supplemental Letter Regarding the U.S. Nuclear Regulatory Commissions Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Apr. 29, 2013), available at ADAMS Accession No. ML13122A370 (Riverkeeper April 29, 2013 Comments) (previously provided as Riverkeeper Motion, Attach. 8).

132 Id. at 2.

133 Id.

134 Letter from K. Moser, NYSDEC, to A. Hull, NRC, NMFSs January 30, 2013 Biological Opinion for Continued Operation of Indian Point Nuclear Generating Units 2 and 3 (Mar. 25, 2013), available at ADAMS Accession No. ML13095A493 (previously provided as Riverkeeper Motion, Attach. 9) (NYSDEC Comments). Because the State of New York did not join or sponsor this contention, this Answer addresses NYSDECs comments for completeness only and to note that to the extent Riverkeeper raised the same issues, they are addressed by NMFS.

operation in once-through cooling mode does not meet New York water quality requirements; (2) NMFS did not consult with NYSDEC prior to issuing the 2013 BiOp and ITS; (3) the total take exempted at IPEC was inflated by an unsupported assumption; (4) NMFS had previously recommended that NRC require closed-cycle cooling for continued operations; (5) the BiOp neither requires nor recommends any effort to reduce IPECs take of endangered sturgeon; and (6) Atlantic sturgeon take was exempted despite the lack of supporting data.135 Entergy responded to NYSDECs letter in April 2013, pointing out that NYSDECs concerns lacked technical support and were based on a misapprehension of important facts.136 As discussed further below, NMFS also responded directly to each of NYSDECs concerns in a May 2013 letter, explaining how it had addressed NYSDECs concerns in the final BiOp or why the concern was not well-founded.137 In June 2013, the NRC Staff issued the FSEIS Supplement.138 The FSEIS Supplement updates certain of the Staffs FSEIS analyses and conclusions with regard to impingement, entrainment, and thermal impacts to non-endangered aquatic species.139 The FSEIS Supplement also describes the lengthy, five-year long consultation process, documents the completion of the Staffs ESA Section 7 consultations with NMFS, and summarizes NMFS 2013 BiOp and ITS.140 In particular, the FSEIS Supplement summarizes NMFS conclusion that the continued operation 135 Id. at 6.

136 Letter from E. Zoli, to K. Moser, Correspondence to Dr. Amy Hull at the Nuclear Regulatory Commission at 6 (Apr. 26, 2013), available at ADAMS Accession No. ML13120A006.

137 Letter from J. Bullard, NMFS, to K. Moser, NYSDEC at 4 (May 31, 2013), available at ADAMS Accession No. ML13155A475 (NMFS May 31, 2013 Response) (previously provided as Entergy Motion to Dismiss, Attach. 3).

138 Letter from S. Turk, Counsel for NRC Staff, to Board (June 21, 2013), available at ADAMS Accession No. ML13172A239.

139 FSEIS Supplement at 1.

140 Id. at 25-28.

of IP2 and IP3 is not likely to jeopardize the continued existence of shortnose sturgeon or certain DPSs of Atlantic sturgeon.141 As explained in the FSEIS Supplement, the Staff examined the weight of impingement and entrainment information for shortnose and Atlantic sturgeon and new information from the consultation process to determine the level of impact resulting from license renewal. The Staff concludes that the level of impact resulting from IPECs license renewal for shortnose sturgeon would be SMALL, given NMFS finding that license renewal would not change the status or trend of the Hudson River population of shortnose sturgeon or the species as a whole.142 Similarly, the Staff concludes that the level of impact resulting from extended operation would be SMALL for Atlantic sturgeon.143 The FSEIS Supplement further finds that development and implementation of an appropriate monitoring plan for both species would help ensure their protection.144 It also explains that license renewal for IP2 and IP3 would be subject to the terms and conditions of the ITS as stated by NMFS.145 Ultimately, [a]fter assessing this new information from NMFS 141 Id. at 28.

142 Id. at 30.

143 Id. As defined in Table B-1, Appendix B to Subpart A of 10 C.F.R. Part 51 (Table B-1), a SMALL significance level means: Environmental effects are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource. (Emphasis added). Thus, the Staffs conclusion that extended operation would neither destabilize nor noticeably alter shortnose and Atlantic sturgeon populations is entirely consistent with NMFS finding that extended operation would not change the status or trend of shortnose and Atlantic sturgeon Hudson River populations or of either the species as a whole. Cf. Table B-1 and 2013 BiOp at 122, 128.

144 Id. In accordance with the ITS, on March 29, 2013 Entergy submitted a biological monitoring plan to NMFS.

See Proposed Draft Monitoring Plan for Indian Point Energy Center Take of Atlantic and Shortnose Sturgeons by Impingement at Cooling Water Intakes (Mar. 29, 2013), available at ADAMS Accession No. ML13088A370. NMFS review of the biological monitoring plan is ongoing, but NMFS recently confirmed in recent correspondence to New York State that the ESA consultation process for IPEC is complete. See NMFS May 31, 2013 Response at 1.

145 Id.

and consistent with the findings in NMFS 2013 BiOpthe FSEIS Supplement concludes that the level of impact for aquatic special status species would be SMALL.146

3. Amended Contention RK-EC-8 Following the Staffs issuance of the FSEIS Supplement, Entergy moved to dismiss RK-EC-8 as moot, on the grounds that all three alleged deficiencies raised in the original contention had been cured.147 On August 20, 2013, Riverkeeper filed a response opposing Entergys motion to dismiss,148 as well as a motion requesting that the Board admit the amended contention.149 In its Motion, Riverkeeper identifies two bases for its amended contention. Basis 1 asserts that the FSEIS Supplement relies blindly on the analyses and conclusions contained in NMFS final BiOp and fails to address or consider comments regarding numerous deficiencies in NMFS analysis.150 Basis 2 avers that the FSEIS Supplement does not include a Staff integrated and fully informed recommendation to the Commission regarding the environmental acceptability of renewing the operating licenses of Indian Point.151 As shown below, Riverkeeper does not present sufficient legal or factual grounds to support admission of the amended contention on either basis.

146 Id.

147 See Entergy Motion to Dismiss. Specifically, Entergy argued that the Staff: (1) completed and documented its ESA Section 7 consultation with NMFS; (2) included and considered in the FSEIS Supplement NMFS assessment of impacts to endangered species; and (3) prepared a supplement to the FSEIS that considers the outcome of the consultation process, including NMFS final BiOp. Id. at 1-2.

148 Riverkeeper, Inc. Response to Entergy Motion to Dismiss Riverkeeper Contention RK-EC-8 at 9 (Aug. 20, 2013), available at ADAMS Accession No. ML13232A391.

149 Riverkeeper Motion.

150 Id. at 7.

151 Id. at 16.

B. Amended Contention RK-EC-8A Is Immaterial, Lacks Sufficient Factual Support and Legal Basis, and Fails to Establish a Genuine Dispute on a Material Issue of Law or Fact For the reasons discussed below, Riverkeeper provides insufficient legal and factual basis to support the admission of RK-EC-8A. In particular, Riverkeeper has not shown that the Staffs reliance on NMFS BiOp was arbitrary and capricious. Rather, the record shows that, consistent with Congresss intent, the Staff appropriately relied on NMFS expert conclusions in confirming its own findings as set forth in four separate BAs. Riverkeeper also has not shown that the NRC Staff and NMFS improperly ignored comments received on the Staffs Draft FSEIS Supplement and NMFS Draft BiOp. To the contrary, the record is clear that the Staff and NMFS were aware of the issues raised in Riverkeepers comments and did address them during the consultation process. Finally, Riverkeeper has not shown that the Staffs conclusions related to endangered sturgeon in the FSEIS Supplement constituted new and significant information that would require a revision or restatement of the Staffs overall recommendation to the Commission regarding IPECs LRA. The Staffs FSEIS recommendation to the Commission that the environmental impacts of license renewal are not so great that preserving the license renewal option would be unreasonable remains in effect and part of the FSEIS, and therefore, there was no need to restate this conclusion in the FSEIS Supplement.

1. RK-EC-8A, Basis 1, Is Immaterial, Insufficient to Establish a Genuine Dispute, and Inadequately Supported

a. Riverkeeper Fails to Provide Sufficient Information Demonstrating that the Staffs Reliance on NMFS BiOp Was Arbitrary and Capricious In support of its amended contention, Riverkeeper claims that the FSEIS Supplement is inadequate in that it relies blindly on NMFS BiOp.152 As noted above, the Section 7 152 Riverkeeper Motion at 7.

interagency consultation process reflects Congresss understanding that NMFS is far more knowledgeable than other federal agencies about the precise conditions that pose a threat to listed species, and that, as the expert agency, NMFS is in the best position to make discretionary factual determinations about whether a proposed agency action will create a problem for a listed species and what measures might be appropriate to protect the species.153 Courts will overturn an action agencys reliance on a BiOp only where the reliance was arbitrary and capricious.154 To show that the NRC Staff acted arbitrarily and capriciously in relying on NMFS BiOp, Riverkeeper must do more than just reargue factual issues that NMFS already took into consideration.155 Rather, it must point to new information that NMFS did not take into account that calls the BiOps factual conclusions into question.156 Riverkeepers characterization of the FSEIS Supplement conclusions as blind reliance on NMFS BiOp is simply incorrect.157 Rather, the record shows that the FSEIS Supplements conclusions were the culmination of an extensive, five-year long back-and-forth consultation process that fully complied with all applicable statutory and regulatory requirements.

Throughout that process, the Staff conducted its own independent analyses of the available information and developed its own findings and conclusions, which were memorialized in four BAs (issued in December 2008, December 2010, July 2011, and May 2012). The conclusions reached by NMFS in its final 2013 BiOp were consistent with and supported the conclusions reached by the Staff in its BAs and FSEIS Supplement.

153 City of Tacoma, 460 F.3d at 75 (emphasis added).

154 Id. (emphasis added) (citing Aluminum Co. of Am., 175 F.3d at 1160 ; Pyramid Lake, 898 F.2d at 1415 (9th Cir. 1990); Stop H-3 Assn, 740 F.2d at 1460).

155 Id. (citing Pyramid Lake, 898 F.2d at 1415-16; Stop H-3 Assn, 740 F.2d at 1459-60) (emphasis added).

156 Id. (citing Pyramid Lake, 898 F.2d at 1415; Stop H-3 Assn, 740 F.2d at 1459-60).

157 Riverkeeper Motion at 7.

Despite Riverkeepers claim that the NRC Staff failed to consider comments critical of the Staffs and NMFS conclusions, as discussed below, the issues raised in Riverkeepers comments were addressed by both agencies during the consultation process. Riverkeeper has provided no new information that would give the Staff a basis for doubting or departing from the expert conclusions in NMFS BiOp.158

b. Riverkeeper Fails to Establish that the NRC Staff and NMFS Improperly Ignored Comments Received on the Draft FSEIS Supplement and Draft BiOp Riverkeeper further claims that, although various concerns were raised to the NRC Staff regarding the validity and adequacy of NMFS 2013 BiOp, the FSEIS Supplement fails to address them.159 Specifically, Riverkeeper points to the August 20, 2012 and April 29, 2013 comments it submitted on the Draft FSEIS Supplement, as well as NYSDECs March 25, 2013 letter to the NRC regarding NMFS 2013 BiOp.160 Riverkeeper further asserts that the Staffs failure to address its and NYSDECs comments renders the Staffs environmental review process inadequate.161 Thus, RK-EC-8A focuses on the Staffs alleged failure to acknowledge, address, or consider comments, but notably does not assert that any responses that the Staff did provide were insufficient in some way.162 As an initial matter, and as noted above, an agencys obligation to respond to public comments is limited under NEPA.163 NEPA does not require the NRC Staff to publish every 158 City of Tacoma, 460 F.3d at 76 (citing Pyramid Lake, 898 F.2d at 1415; Stop H-3 Assn, 740 F.2d at 1459-60).

159 Riverkeeper Motion at 12.

160 Id. at 8-12.

161 Id. at 15.

162 Id. at 16.

163 Block, 690 F.2d at 773.

comment it receives or to discuss at full length comments expressing opposing views.164 Moreover, under the ESA, there is no opportunity for the public to comment on a draft NMFS BiOp, much less an obligation on NMFS part to respond to public comments received.165 Even putting aside the question of whether the Staff and NMFS have a legal obligation to respond to each and every one of Riverkeepers comments, as Riverkeeper seems to believe, RK-EC-8A nonetheless fails to satisfy the contention admissibility requirements of 10 C.F.R.

§ 2.309(f)(1)(iv), (v), and (vi). As a factual matter, and contrary to Riverkeepers claims, both the NRC Staff and NMFS addressed the issues raised in Riverkeepers comments on the Draft FSEIS Supplement, Riverkeepers comments on the draft 2013 BiOp, and NYSDECs comments on the final 2013 BiOp, as shown below. Therefore, because Riverkeeper only challenges whether the Staff addressed its commentsand not whether it appropriately addressed their substanceBasis 1 of RK-EC-8A fails to raise a material dispute.

(i) Alleged Use of Old Data In its comments on the Draft FSEIS Supplement, Riverkeeper complained about the Staffs reliance on decades-old data that is not necessarily reflective of current conditions.166 In direct response to this comment, the Staff explained that it based its analyses on the most recent data available at the time.167 Specifically, the Staff relied on impingement data from 1975 through 1990, entrainment data from the 1980s, and thermal plume data from a 2011 Entergy 164 Id.

165 See, e.g., San Luis & Delta-Mendota Water Auth. v. Salazar, 760 F. Supp. 2d at 957 (Neither the ESA nor its implementing regulations require an opportunity for public comment or that FWS respond to any comments received [on a draft BiOp]. Plaintiffs suggestion that FWS violated the ESA by ignoring comments on the draft BiOp is legally unsustainable.) (citations omitted).

166 FSEIS Supplement, App. A at A-6; see also Riverkeeper Motion at 9. In its comment letter on the Draft FSEIS Supplement, NYSDEC also commented about the use of out of date data. See FSEIS Supplement, App. A at A-21. The Staff addressed NYSDECs comment with a response similar to the response provided to Riverkeeper. Id.

167 FSEIS Supplement, App. A at A-6.

study.168 It further noted that its analyses took into account any changes to the fish populations in the Hudson River that have occurred over the years from 1974 through 2005.169 The Staff also pointed out that it had no reason to believe that the conditional impingement and entrainment mortality rate estimates based on those data would be different today, and importantly, that Riverkeeper presents no information to suggest that such rates have changed.170 Contrary to Riverkeepers claim, the Staff fully addressed this issue by explaining in the FSEIS Supplement that it used the most recent information available.171 Likewise, NMFS based its analysis in the 2013 BiOp on the best available information.172 Riverkeeper does not point to any newer or better data that were available to, but not used by, the Staff or NMFS. Instead, Riverkeeper simply attempts to reargue a factual issue that NMFS already considered in its BiOp. Therefore, Riverkeeper has failed to provide sufficient information to support its contention or establish a genuine dispute, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi).

(ii) Resolution of Pisces Questions Regarding Impacts to Shortnose Sturgeon In its August 2012 comments, Riverkeeper also submitted a report by its biologist consultants, Pisces. According to Riverkeeper, although Pisces called into question the Staffs 168 Id.

169 Id.

170 Id. at A-7.

171 See also FSEIS at A-62. As noted above, NEPAs rule of reason does not require an agency to conduct or require new studies in response to issues raised in the comments. Block, 690 F.2d at 773 (citing Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 554 (9th Cir. 1977)).

172 See, e.g., 2013 BiOp at 99, 126. In response to a similar Riverkeeper comment submitted to NMFS on the draft 2013 BiOp, NMFS noted that the impingement data collected from 1974 to 1990 was the only impingement data available for IPEC, but Riverkeeper offers no alternative method for calculating impingement estimates and does not refer us to any additional data sources. NMFS Memorandum at 24.

conclusion that continued IPEC operations would have SMALL impacts on the shortnose sturgeon, the Staff failed to address Pisces concern.173 Contrary to Riverkeepers characterization of the Pisces report, Pisces did not call into question the Staffs conclusion or call for more study. Rather, Pisces agreed that the NRC Staffs opinion that the impacts on shortnose sturgeon would be SMALL does not seem unreasonable, but should be checked with someone with local knowledge of the populations.174 The Staff indicated that it had addressed this issue in Section 4.0 of the FSEIS Supplement, which was revised to reflect the results of the Staffs consultation with NMFS on the potential impacts to endangered sturgeon.175 In other words, as Pisces suggested, the NRC Staff checked with someone with local knowledge (i.e., NMFS) before concluding the potential impacts to shortnose sturgeon would be SMALL. Moreover, the Pisces report did not present any data or scientific analysis that the Staff should have, but did not, consider.

Consequently, the Staff fully addressed this comment, and Riverkeeper has failed to explain how the Staffs resolution of this comment was arbitrary or capricious. Accordingly, Riverkeeper has failed to provide sufficient information to establish a genuine dispute, as required by 10 C.F.R. § 2.309(f)(1)(vi).

(iii) Usefulness of Issuing a Final BiOp Prior to Resolution of SPDES Permit and Water Quality Certification Proceedings Despite the closure of the public comment period on the Draft FSEIS Supplement in August 2012, Riverkeeper submitted supplemental comments on the Staffs Draft Supplemental 173 Riverkeeper Motion at 8-9.

174 Riverkeeper Aug. 20, 2012 Comments, Attach. A at 3 (emphasis added).

175 FSEIS Supplement, App. A, at A-8.

FSEIS on April 29, 2013more than eight months after the comment period had closed.176 Riverkeeper, however, simply repeated and attached the November 23, 2012 comments it had submitted to NMFS on the October 2012 draft BiOp.177 In particular, Riverkeeper asserted that NMFS should wait to issue a final BiOp, pending the final outcomes of IPECs Water Quality Certification and SPDES permit proceedings before NYSDEC.178 According to Riverkeeper, the eventual outcomes of the ongoing state proceedings would determine if and how IPEC will continue to operate, and issuing a BiOp prior to the resolution of those proceedings is neither appropriate nor useful.179 NMFS previously addressed this issue in its 2013 BiOp.180 Specifically, NMFS noted that its BiOp was based on the plants current configuration and that if a new SPDES permit or Water Quality Certification were issued, NRC and NMFS would evaluate the need to reinitiate consultations at that time.181 The Staff also addressed this issue in the FSEIS Supplement, indicating that, if and when NYSDEC made a decision regarding the cooling water intake structures for the period of extended operation, then the Staff would consider whether Section 7 consultations should be reinitiated.182 176 Riverkeeper Apr. 29, 2013 Comments.

177 Id. at 2; id., Attach. 1. In its comment letter, Riverkeeper acknowledged that its supplemental comments were filed well beyond the comment period closed and just before the Staff finalized the FSEIS Supplement. Id. at

2. Given Riverkeepers eleventh-hour filing of its comments, the Staff had no legal obligation to address these comments. See 10 C.F.R. §51.73.

178 Id., Attach. 1 at 2-5.

179 Id., Attach. 1 at 4.

180 2013 BiOp at 12-13.

181 Id.; see also NMFS Memorandum at 23 (operation [of IPEC] with closed cycle cooling or wedge wire screens is not the proposed action and considering either of those alternatives in the effects analysis or jeopardy determination would be inappropriate).

182 FSEIS Supplement at A-6. Despite their lateness, Riverkeeper claims that it was entirely appropriate, [and]

indeed necessary, for the NRC Staff to consider and address the issues raised in these comments. Riverkeeper Motion at 14. In its Motion, Riverkeeper does not identify any legal authority (and Entergy is aware of none) to support its position that NEPA requires the NRC Staff to consider and address comments received well beyond the comment periodeven those comments that were late-filed because of circumstances that occurred In RK-EC-8A, Riverkeeper provides no support for its conclusory assertion that its comment to NMFS remains unaddressed.183 Nor does Riverkeeper provide information demonstrating that the NRC Staff unreasonably addressed this issue in the FSEIS Supplement.

To the contrary, Riverkeeper attempts to reargue an issue that NMFS already considered in its 2013 BiOp. Accordingly, for this issue, Riverkeeper has likewise failed to provide sufficient information to support its contention or establish a genuine dispute, contrary to 10 C.F.R.

§ 2.309(f)(1)(v) and (vi).

(iv) Disagreement with NMFS Incidental Take Statement In its April 23, 2013 comments, Riverkeeper claimed that there was no basis for NMFS findings exempting the take of shortnose and Atlantic sturgeon, because any impacts on these species may have noticeable affects and it is critical that such impacts are kept to a minimum.184 Riverkeeper again questioned NMFS findings because they allegedly are based on data that were collected over 20 years ago.185 First, to the extent Riverkeeper argues that any impacts should be considered significant and that the anticipated losses of Atlantic and shortnose sturgeon are not appropriate or acceptable,186 Riverkeeper fails to raise a material issue as required by 10 C.F.R.

§ 2.309(f)(1)(iv). Contrary to Riverkeepers suggestion, the ESA does not prohibit the NRC after the comment period closure. Indeed, the D.C. Circuit has rejected challenges to an FEIS based on the sequencing of environmental analyses (i.e., new information that became available after the DEIS comment period closed) where the challenger has not shown that omissions in the DEIS left the public unable to make known its environmental concerns about the projects impact. Natl Comm. for the New River, Inc. v. FERC, 373 F.3d 1323, 1329-30 (D.C. Cir. 2004).

183 Riverkeeper Motion at 8 n.27.

184 April 29, 2013 Comments, Attach. 1 at 6-8.

185 Id., Attach. 1 at 8.

186 April 29, 2013 Comments, Attach. 1 at 7.

from issuing a license for a nuclear power plant because the plant may have a small adverse impact on an endangered or threatened species.187 Second, contrary to Riverkeepers claims, NMFS thoroughly addressed this issue in Section 9.0 of the 2013 BiOp, which provides NMFS detailed analysis of the likelihood of IPECs continued operation appreciably reducing the survival and recovery of endangered shortnose and Atlantic sturgeon, despite potential impingement of both species.188 For example, the BiOp notes that, while the loss of a small number of individuals from a subpopulation or species can have an appreciable effect on the likelihood of survival and recovery of the species, this situation is not likely in the case of shortnose sturgeon because: (1) the species has a wide geographic distribution; (2) it is not known to have low levels of genetic diversity; and (3) there are thousands of shortnose sturgeon spawning each year.189 NMFS also concluded that the number of Atlantic sturgeon potentially impinged during extended operation was unlikely to change the status of this species, as this loss represents a very small percentage of the Hudson River population of juveniles and an even smaller percentage of the overall Hudson River population.190 As a result of this detailed analysis, NMFS concluded that IPECs continued operation is not likely to jeopardize the continued existence of any endangered sturgeon.191 In reaching this conclusion, NMFS emphasized that it reviewed the best available information on the status of endangered and threatened species under NMFS jurisdiction, the environmental baseline for the 187 See Hartsville ALAB-463, 7 NRC at 360. Moreover, as noted by NMFS, the appropriate standard under ESA Section 7 is not whether the level of incidental take is appropriate or acceptable, but rather, whether license renewal is reasonably expected to reduce appreciably the likelihood of both survival and recovery of the species in the wild. NMFS Memorandum at 23.

188 2013 BiOp at 113-26.

189 Id. at 118.

190 Id. at 123.

191 Id.

action area, the effects of the proposed action, interdependent and interrelated actions and the cumulative effects.192 Riverkeeper fails to set forth any relevant facts, references, or expert opinion indicating how or why NMFS could have conducted its evaluation differently.193 Nor does Riverkeeper present any technical analysis addressing the specific rationale NMFS provided in the 2013 BiOp when it concluded that continued operation of IP2 and IP3 would not likely jeopardize the continued existence of shortnose or Atlantic sturgeon. Although Riverkeeper notes that its consultant stated that any impact to sturgeon cannot be considered trivial,194 it is well-settled that conclusory statements, even by an expert, are not sufficient to support a contention.195 Here, Riverkeepers consultant provided only assertions that impingement at IPEC will contribute to sturgeon losses, but provided no reasoned basis or explanation to question NMFS numeric estimate of those potential losses or their insignificance. Accordingly, Riverkeeper has failed to provide sufficient information to support its contention or establish a genuine dispute, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi).

(v) Cumulative Impacts from Other Hudson River Power Plants Riverkeeper commented that NMFS failed to assess the cumulative impacts to Atlantic sturgeon from all power plants (not just IPEC) in the Hudson River.196 NMFS also addressed this issue in the 2013 BiOp, in which it discussed entrainment and impingement impacts from 192 Id. at 126.

193 In response to comments made by Riverkeepers consultant, NMFS noted that, [w]hile Dr. Henderson makes numerous comments about the [draft 2013 BiOp], he provides no scientific analysis or citations to support any of his statements. NMFS Memorandum at 23, 24.

194 April 29, 2013 Comments, Attach. 1 at 7.

195 USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006).

196 Riverkeeper April 29, 2013 Comments, Attach. 1 at 8-10.

other Hudson River plants on the shortnose and Atlantic sturgeon.197 Riverkeeper does not challenge this data. Rather, it offers only conclusory statements that call for additional analysis by NMFS. Consequently, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi), Riverkeeper has failed to provide sufficient information to support its contention or establish a genuine dispute.

(vi) Impacts of Radiological Releases from IPEC Riverkeeper further criticized the 2013 BiOp for its failure to consider the impacts of radiological discharges from IPEC on endangered sturgeon.198 This issue was also fully considered and addressed in NMFS 2013 BiOp. Specifically, NMFS found that, while shortnose and Atlantic sturgeon may be exposed to radionuclides originating from IPEC (as well as other sources), any radiological exposure is not likely to be at levels that would affect the health or fitness of any individual shortnose or Atlantic sturgeon.199 Moreover, in response to Riverkeepers comments, NMFS modified the description of sources of radionuclides to more fully describe the sources of radionuclides to the environment in the final 2013 BiOp.200 Riverkeeper offers nothing but conclusory statements disputing NMFS findings. Accordingly, Riverkeeper has failed to provide sufficient information to support its contention or establish a genuine dispute, as required by 10 C.F.R. § 2.309(f)(1)(v) and (vi).

197 2013 BiOp at 43-44. See also NMFS Memorandum at 24, 25 (the 2013 BiOp appropriately considers other anthropogenic impacts to Atlantic sturgeon, including other power plant intakes, and Riverkeeper presents no information or analysis in their letter regarding the impacts of these other facilities . . . on shortnose or Atlantic sturgeon.).

198 See Riverkeeper April 29, 2013 Comments, Attach. 1 at 10-12.

199 2013 BiOp at 108.

200 NMFS Memorandum at 26.

(vii) Failure to Assess All Reasonable and Prudent Measures In addition, Riverkeeper commented that NMFS had failed to assess the efficacy of closed-cycle cooling as a reasonable and prudent measure at IPEC.201 NYSDEC submitted similar comments to the NRC.202 As noted above, the 2013 BiOp identifies five reasonable and prudent measures that NMFS believes are necessary or appropriate to minimize or monitor impacts of incidental take of shortnose and Atlantic sturgeon.203 Moreover, in response to NYSDECs March 25, 2013 letter, NMFS directly addressed the issue of closed-cycle cooling as a possible additional reasonable and prudent measure. Specifically, NMFS cited 50 C.F.R. § 402.14(i)(2), which states that reasonable and prudent measures cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes.204 NMFS noted that requiring the conversion of IPECs cooling water system to a closed cycle would not fit within the allowable scope of a reasonable and prudent measure, as it would involve more than a minor change to the proposed action.205 NMFS further observed that it was unaware of any other reasonable and prudent measures that could be implemented at IPEC that would minimize take at IPEC.206 As NMFS May 31, 2013 Response makes clear, NMFS squarely addressed this issue.

Riverkeeper has not cited to that response or provided any reason to question NMFS 201 See Riverkeeper April 29, 2013 Comments, Attach. 1 at 13-14.

202 NYSDEC Comments at 4-5.

203 2013 BiOp at 132-33.

204 NMFS May 31, 2013 Response at 4; 50 C.F.R. § 402.14(i)(2) (emphasis added).

205 NMFS May 31, 2013 Response at 4.

206 Id. See also NMFS Memorandum at 26-27 (we cannot require that Indian Point convert to closed-cycle cooling or install cooling towers as [a reasonable and prudent measure], because such a modification to the facility would be more than a minor change to the basic design of the proposed action.).

assessment.207 Accordingly, Riverkeeper has failed to establish a genuine dispute on a material issue, contrary to 10 C.F.R. § 2.309(f)(1)(vi).

(viii) Efficacy of Conservation Recommendations Riverkeeper also questioned the efficacy and sufficiency of NMFS Conservation Recommendations related to the impact of IPEC on sturgeon in the Hudson River.208 Although Riverkeeper acknowledged that the recommendations are important and will result in the existence of better information, it allegedwithout citing any factual or expert supportthat the recommendations are discretionary and fail to achieve a net conservation benefit to the endangered sturgeon populations in the Hudson River.209 In its 2013 BiOp, NMFS identified seven conservation recommendations for the NRCs consideration.210 Notwithstanding Riverkeepers unsupported, conclusory statements, NMFS concludedin its expert opinionthat the recommendations would minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help implement recovery plans, or to develop information.211 Moreover, contrary to Riverkeepers interpretation, the purpose of the conservation recommendations is not to mitigate impacts on endangered sturgeon or to result in a net conservation benefit to those species; rather, the recommendations are intended to be activities that NRC could carry out that would provide [NMFS] with important information on listed sturgeon.212 Accordingly, Riverkeeper has failed to provide proper 207 Riverkeeper also fails to acknowledge that, for NEPA purposes, FSEIS Section 8.1 already fully evaluates the environmental impacts of the closed-cycle cooling alternative. Again, Riverkeeper fails to controvert that evaluation.

208 Riverkeeper April 29, 2013 Comments, Attach. 1 at 14.

209 Id.

210 2013 BiOp at 138-39.

211 Id.

212 NMFS Memorandum at 27.

support for its contention and to establish a genuine dispute on a material issue, as required by 10 C.F.R. § 2.309(f)(1)(v) and (vi).

(ix) IPECs Once-Through Cooling System Does Not Meet State Water Quality Requirements In its Motion, Riverkeeper also faults the NRC Staff for failing to address NYSDECs concerns related to NMFS 2013 BiOp.213 As an initial matter, NYSDEC submitted its concerns on the final (already issued) BiOp by letter dated March 25, 2013; the March 2013 letter was not intended to comment on the Staffs Draft FSEIS Supplement. Thus, the Staff had no obligation to consider or address NYSDECs concerns in the final FSEIS Supplement. Nonetheless, as noted above, both NMFS and Entergy appropriately responded to the issues raised in NYSDECs comments.

As discussed previously, NYSDEC criticized the 2013 BiOp, because in its view, IPECs continued operation in once-through cooling mode does not meet New York water quality requirements, and NMFS should not have issued an ITS with its BiOp.214 NMFS responded that it must issue an ITS when it determines, as it did in this case, that the proposed action and any incidental takings are not likely to jeopardize an endangered species continued existence.215 NMFS further explained that, in issuing an ITS, it is not required to determine the lawfulness of the proposed action, and it made no such finding in the 2013 BiOp or accompanying ITS.216 Riverkeeper has not cited to or provided any basis to challenge NMFS response to this NYSDEC issue. Therefore, NMFS fully addressed this issue, which fails to raise a genuine dispute as required by 10 C.F.R. § 2.309(f)(vi).

213 Riverkeeper Motion at 13-14. As noted earlier, although New York State did not join or sponsor this contention, this Answer addresses NYSDECs comments for completeness only.

214 NYSDEC Comments at 2.

215 NMFS May 31, 2013 Response at 1.

216 Id.

(x) Failure to Consult with NYSDEC NYSDEC also commented that NMFS did not consult with NYSDEC prior to issuing the 2013 BiOp and ITS as required by the Cooperative Agreement between NMFS and NYSDEC.217 NMFS responded that NYSDEC had incorrectly interpreted the ESA, asserting that [n]owhere in the ESA is there a requirement to consult with a state prior to issuance of a Biological Opinion.218 NMFS further pointed out that, although it was not required to consult with the State, it did offer NYSDEC an opportunity to comment on the 2011 BiOp.219 NMFS also assured NYSDEC that it intended to confer with and involve NYSDEC in the development of an impingement monitoring plan at IPEC.220 Accordingly, this NYSDEC issue has also been fully addressed by NMFS and raises no material dispute.

(xi) Unsupported Inflated Take Exemptions NYSDEC expressed disagreement with the method NMFS used to determine the number of shortnose and Atlantic sturgeon likely to be taken at IPEC.221 In particular, it disagreed with NMFS application of a water use correction factor, which resulted in a greater number of sturgeon to be taken rather than protected.222 In its May 31, 2013 Response, NMFS justified the use of a water correction factor.

Notably, NMFS also explained that its conservative evaluation of the maximum potential take reduced the risk of an incorrect conclusion as to whether the proposed action was likely to jeopardize the species. In other words, if NMFS had assumed a lower level of incidental take (as 217 NYSDEC Comments at 2-3.

218 NMFS May 31, 2013 Response at 2.

219 Id.

220 Id.

221 NYSDEC Comments at 3-4.

222 Id.

NYSDEC was apparently advocating), then NMFS necessarily would have found that continued IP2 and IP3 operation resulted in even lower potential risk to the species.223 Riverkeeper has not alleged that NMFS response was insufficient or offered any information disputing NMFS response to this issue. Nor has Riverkeeper established the materiality of the 2013 BiOp potentially conservatively overstating the impact to sturgeon. Thus, the issue is immaterial, inadequately supported, and does not raise a genuine dispute, as required by 10 C.F.R. § 2.309(f)(iv), (v), and (vi).

(xii) Failure to Require Closed-Cycle Cooling to Reduce Impacts to Essential Fish Habitats NYSDEC commented that NMFS had previously recommended that NRC require closed-cycle cooling for IPECs continued operations as a conservation measure to minimize the impacts on essential fish habitats (EFH) but that Entergy had not committed to implementing closed-cycle cooling.224 In response to this comment, NMFS pointed out that neither the shortnose nor Atlantic sturgeon have designated EFH, and therefore, NMFS EFH consultation with NRC did not consider habitat for those species.225 Because Riverkeeper has not offered any information to dispute NMFS determination on this issue, this issue is inadequately supported and does not raise a genuine dispute, as required by 10 C.F.R. § 2.309(f)(v) and (vi).

(xiii) Insufficient Data to Support Exempting Atlantic Sturgeon Take Finally, NYSDEC criticized NMFS decision to exempt certain take of Atlantic sturgeon even though it lacks recent abundance or impingement data.226 In its response, NMFS stated that it had considered the best available scientific information in issuing its BiOp, as required by 223 NMFS May 31, 2013 Response at 3-4.

224 NYSDEC Comments at 4.

225 NMFS May 31, 2013 Response at 4.

226 NYSDEC Comments at 5.

the ESA.227 Again, Riverkeeper has failed to point to any other information that was available to NMFS but was not considered. Accordingly, this issue is inadequately supported and does not raise a genuine dispute, contrary to 10 C.F.R. § 2.309(f)(v) and (vi).

As shown in this section, contrary to Riverkeepers assertion that its August 20, 2012 and (late-filed) April 23, 2013 comments, and NYSDECs March 25, 2013 letter to the NRC went unaddressed or unacknowledged, both the NRC Staff and NMFS directly addressed the issues raised in each of those comments. Moreover, RK-EC-8A, Basis 1 fails to provide sufficient information or support establishing a genuine material dispute with the FSEIS Supplement.

Accordingly, it fails to satisfy the contention admissibility requirements of 10 C.F.R.

§ 2.309(f)(1)(iv), (v), and (vi). As a result, Riverkeepers first asserted basis for RK-EC-8A is insufficient to support its admission.

2. RK-EC-8A, Basis 2 Is Immaterial, Insufficient to Establish a Genuine Dispute, and Inadequately Supported In the December 2010 FSEIS, the NRC Staff made the recommendation that the Commission determine that the adverse environmental impacts of license renewals for IP2 and IP3 are not so great that preserving the option of license renewal for energy planning decision makers would be unreasonable.228 Riverkeeper asserts as a second basis for its amended contention that the FSEIS Supplement is legally deficient because it does not update the Staffs integrated recommendation to the Commission regarding renewal of the IPEC operating 227 NMFS May 31, 2013 Response at 5.

228 FSEIS, Vol. 1 at iv (NYS00133A).

licenses.229 For the reasons described below, this basis is also insufficient to support the admission of the amended contention, based on the lack of any new and significant information.

As an initial matter, the FSEIS Supplement is just thata supplement. It does not entirely supersede the Staffs December 2010 FSEIS. The scope of the supplement is limited to a discussion of new information regarding impacts of IPECs continued operations to aquatic species.230 Any portions of the FSEIS that were altered were marked up in the FSEIS Supplement; any portions not affected by the new informationincluding the Staffs overall recommendation to the Commissionremain in effect and part of the FSEIS.

To the extent that Riverkeeper faults the FSEIS Supplement for not repeating information that remained in effect and part of the FSEIS, such a claim is immaterial to the NRC Staffs NEPA findings. As the Commission has instructed, NRC adjudicatory hearings are not EIS editing sessions. Our busy boards do not sit to parse and fine-tune EISs.231 As relevant to RK-EC-8A, the FSEIS Supplements conclusion regarding the overall impact of continued operation on endangered aquatic species is consistent with the conclusion reached in the FSEIS. In particular, the Staff concluded that the level of impact on shortnose and Atlantic sturgeon would be SMALL, which reflects no change from the level of impact assigned to these species in the FSEIS.232 229 Riverkeeper Motion at 16.

230 FSEIS Supplement at 1-2.

231 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI 17, 58 NRC 419, 431 (2003). See also Exelon Generating Co., LLC (Early Site Permit for Clinton ESP Site),

CLI-05-29, 62 NRC 801, 811 (2005) (There may, of course, be mistakes in the [EIS], but in an NRC adjudication, it is Intervenors burden to show their significance and materiality. Our boards do not sit to flyspeck environmental documents or to add details or nuances. (internal quotes omitted)); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 349 (2002) (NEPA does not call for examination of every conceivable aspect of federally licensed projects.) (internal quotes omitted).

232 FSEIS Supplement at 24, 25.

Moreover, as the Commission has observed, a dispute is material if its resolution would make a difference in the outcome of the licensing proceeding.233 Given that the assessments reached by the Staff in the FSEIS Supplement reflect the same impacts to special status aquatic species, there is no reason or need for the Staff to alter or reiterate its original FSEIS recommendation regarding IPEC license renewal. Thus, Riverkeeper has failed to show that Basis 2 is material to the findings the NRC must make to support the action that is involved in the proceeding.234 Basis 2 also must be dismissed because it fails to comply with 10 C.F.R. § 2.309(f)(1)(v),

which requires a concise statement of the alleged facts or expert opinions and the specific sources and documents on which the petitioner intends to rely to support its position on the issue. In particular, Riverkeeper is required to provide documents or other factual information or expert opinion that set forth the necessary technical analysis to show why the proffered bases support its contention. 235 Riverkeeper falls far short of meeting these requirements. In fact, rather than dispute the SMALL impact finding in the FSEIS Supplement, Riverkeeper provides a consultant report that agrees that this conclusion does not seem unreasonable.236 Thus, Riverkeepers own consultant expressed agreement with the Staffs conclusions.

At best, Riverkeepers criticisms of the FSEIS Supplement are vague and conclusory.

For instance, although Riverkeeper claims that its expert supported concerns about deficiencies 233 Oconee, CLI-99-11, 49 NRC at 333-34 (citing Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989)).

234 10 C.F.R. § 2.309(f)(1)(iv).

235 Private Fuel Storage (Indep. Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 180 (emphasis added)

(citing Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 41 NRC 281, 305), affd, CLI-98-13, 48 NRC 26 (1998).

236 Riverkeeper Aug. 20, 2012 Comments, Attach. A § 4.

in the NMFS BiOp,237 it fails to set forth any relevant facts, references, or expert opinion indicating how or why this evaluation should have been conducted differently. It is well-settled that conclusory statements, even by an expert, are not sufficient to support a contention.238 In summary, Riverkeepers second basis for RK-EC-8A is immaterial, insufficient to establish a genuine dispute, and insufficient to support its admission. Because RK-EC-8A as a whole lacks legal and factual basis, the amended contention is inadmissible in its entirety.

IV. CONCLUSION For the reasons set forth above, Riverkeeper has failed to provide sufficient information to establish a genuine dispute on a material issue of law or fact concerning compliance with the mandates of the ESA or NEPA, as required by 10 C.F.R. § 2.309(f)(1)(iv), (v), and (vi).

Accordingly, RK-EC-8A is inadmissible and should be rejected in its entirety, and Riverkeepers Motion should be denied.

Respectfully submitted, Executed in accord with 10 C.F.R. § 2.304(d)

William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

Entergy Nuclear Operations, Inc. Jonathan M. Rund, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, N.W.

Phone: (914) 272-3202 Washington, D.C. 20004 E-mail: wglew@entergy.com Phone: (202) 739-5738 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: jrund@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

Dated in Washington, D.C.

this 1st day of October 2013 237 Riverkeeper Motion at 21.

238 USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC at 472.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) October 1, 2013 MOTION CERTIFICATION Counsel for Entergy certifies that he has made a sincere effort to make himself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.

Executed in accord with 10 C.F.R. § 2.304(d)

Paul M. Bessette, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5796 Fax: (202) 739-3001 E-mail: pbessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

Attachment 1 January 29, 2013 NMFS Memorandum

Attachment 2 December 2010 NRC Revised Biological Assessment

Biological Assessment Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 License Renewal December 2010 Docket Nos. 50-247 and 50-286 U.S. Nuclear Regulatory Commission Rockville, Maryland

Revised Biological Assessment of the Potential Effects on Federally Listed Endangered or Threatened Species from the Proposed Renewal of Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 Introduction and Purpose The U.S. Nuclear Regulatory Commission (NRC) staff prepared this biological assessment (BA) to support the supplemental environmental impact statement (SEIS) for the renewal of the operating licenses for Indian Point Nuclear Generating Unit Nos. 2 and 3 (IP2 and IP3), located on the shore of the Hudson River in the village of Buchanan, in upper Westchester County, New York. The current 40-year licenses expire in 2013 (IP2) and 2015 (IP3). The proposed license renewal for which this BA has been prepared would extend the operating licenses to 2033 and 2035 for IP2 and IP3, respectively.

The NRC is required to prepare the SEIS as part of its review of a license renewal application.

The SEIS supplements NUREG-1437, Volumes 1 and 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS), (NRC 1996, 1999)1 for the license renewal of commercial nuclear power plants. The SEIS covers specific issues, such as the potential impact on endangered and threatened species, that are of concern at IP2 and IP3 and that could not be addressed on a generic basis in the GEIS. The NRC staff published the draft SEIS in December 2008 (NRC 2008) and published the final SEIS on December 3, 2010 (NRC 2010).

Pursuant to Section 7 of the Endangered Species Act of 1973 (ESA), as amended, the NRC staff requested, in a letter dated August 16, 2007 (NRC 2007), that the National Marine Fisheries Service (NMFS) provide information on Federally listed endangered or threatened species, as well as on proposed or candidate species, and on any designated critical habitats that may occur in the vicinity of IP2 and IP3. In its response, dated October 4, 2007 (NMFS 2007), NMFS expressed concern that the continued operation of IP2 and IP3 could have an impact on the shortnose sturgeon (Acipenser brevirostrum), an endangered species that occurs in the Hudson River. NMFS also noted that a related species that also occurs in the Hudson River, the Atlantic sturgeon (Acipenser oxyrinchus), is a candidate species for which NMFS has proposed listing as endangered. The NRC staff has corresponded with NMFS regarding the Atlantic sturgeon, and requests that NMFS address Atlantic sturgeon to the extent appropriate (NMFS 2010).

Under Section 7, the NRC is responsible for providing information on the potential impact that the continued operation of IP2 and IP3 could have on the Federally listed species, the shortnose sturgeon. In addition, the NRC has prepared information regarding the potential impact on important species, including the Atlantic sturgeon; this information can be found in Chapters 2 and 4 of the SEIS (NRC 2010).

The NRC staff relied on data originally supplied by the applicant, Entergy Nuclear Operations, Inc. (Entergy) in preparing the BA for IP2 and IP3 in the draft SEIS (Entergy 2007b) but a

The GEIS was originally issued in 1996. Addendum 1 to the GEIS was issued in 1999. Hereafter, all references to the GEIS include the GEIS and its Addendum 1.

subsequently questioned the impingement data supplied by Entergy. The NRC staff sought, and Entergy later submitted revised impingement data (Entergy 2009). Mathematical errors in the original data submitted to the NRC (Entergy 2007b) apparently resulted in overestimates of the take of shortnose sturgeon that the NRC staff presented in the previous BA. The NRC staff found that the differences in the original (Entergy 2007b) and revised (Entergy 2009) data were of sufficient magnitude to possibly affect the staffs conclusions and has issued this revised biological assessment based on the revised data.

Proposed Action The current proposed action considered in the SEIS is the renewal of the operating licenses for IP2 and IP3 for an additional 20-year term beyond the period of the existing licenses. The applicant has indicated that it may replace reactor vessel heads and control rod drive mechanisms during the period of extended operation. (For a description of these activities and potential environmental effects, see Chapter 3 of the SEIS.) If the NRC grants the operating license renewals, the applicant can operate and maintain the nuclear units, the cooling systems, and the transmission lines and corridors as they are now until 2033 and 2035.

Site Description IP2 and IP3 are located on a 239-acre (97-hectare) site on the eastern bank of the Hudson River in the village of Buchanan, Westchester County, New York, about 24 miles (mi)

(39 kilometers [km]) north of New York City, New York (Figures 1 and 2). Privately owned land bounds the north, south, and east sides of the property (Figure 3). The area is generally described as an eastern deciduous forest, dominated by oak (Quercus), maple (Acer), and beech (Fagus) species. The lower Hudson River is a tidal estuary, flowing 152 miles (244 km) from the Federal Dam at Troy, New York, to the Battery in New York City. IP2 and IP3 are located at River Mile (RM) 43 (RKM 69), where the average water depth is 40 feet (ft) (12 meters [m]), and the average width of the river is 4500 ft (1370 m). The Hudson River is tidal all the way to the Federal Dam, and the salinity zone in the vicinity of the facility is oligohaline (low salinity, ranging from 0.5 to 5 parts per thousand (ppt)), with the salinity changing with the level of freshwater flow. Water temperature ranges from a winter minimum of 34 degrees Fahrenheit (F) (1 degree Celsius (C)) to a summer maximum of 77 degrees F (25 degrees C)

(Entergy 2007a).

The mid-Hudson River provided the cooling water for four other power plants: Roseton Generating Station, Danskammer Point Generating Station, Bowline Point Generating Station, and Lovett Generating Station; all four stations are fossil-fueled steam electric stations, located on the western shore of the river, and all use once-through cooling. Roseton consists of two units and is located at RM 66 (RKM 106), 23 mi (37 km) north of IP2 and IP3. Just 0.5 mi (0.9 km) north of Roseton is Danskammer, with four units. Bowline lies about five mi (eight km) south of IP2 and IP3 and consists of two units (Entergy 2007a; CHGEC 1999). Lovett, almost directly across the river from IP2 and IP3, is no longer operating.

Source: Entergy 2007a Figure 1: Location of IP2 and IP3, 50-mile (80-km) radius Source: Entergy 2007a Figure 2: Location of IP2 and IP3, 6-mile (10-km) radius Source: Entergy 2007a Figure 3: IP2 and IP3 property boundaries and environs Description of Plants and Cooling Systems IP2 and IP3 are pressurized-water reactors with turbine generators that produce a net output of 6432 megawatts-thermal and approximately 2158 megawatts-electrical. Both IP2 and IP3 use water from the Hudson River for their once-through condensers and auxiliary cooling systems.

Each unit has seven intake bays (Figure 4), into which the river water flows, passing under the floating debris skimmer wall and through Ristroph traveling screens (Figure 5). IP2 has six dual-speed circulating water pumps that can each pump 140,000 gallons per minute (gpm)

(8.83 cubic meters per second [m3/s]) at full speed and 84,000 gpm (5.30 m3/s) at reduced speed; at full speed, the approach velocity is approximately 1 foot per second (fps) (0.30 meters per second [m/s]) and at reduced speed, the approach velocity is 0.6 fps (0.2 m/s). IP3 also has six dual-speed circulating water pumps. The full speed flow rate of each of these pumps is 140,000 gpm (8.83 m3/s), with a 1 fps (0.30 m/s) approach velocity; the reduced speed is 64,000 gpm (4.04 m3/s), with a 0.6 fps (0.2 m/s) approach velocity (Entergy 2007a).

Source: Entergy 2007a Figure 4: IP2 intake structure (left) and IP3 intake structure (right)

The traveling screens employed by IP2 and IP3 are modified vertical Ristroph-type traveling screens installed in 1990 and 1991 at IP3 and IP2, respectively. The screens were designed in concert with the Hudson River Fishermens Association, with screen basket lip troughs to retain water and minimize vortex stress (CHGEC 1999). Studies indicated that, assuming the screens continued to operate as they had during laboratory and field testing, the screens were the screening device most likely to impose the least mortalities in the rescue of entrapped fish by mechanical means (Fletcher 1990). The same study concluded that refinements to the screens would be unlikely to greatly reduce fish kills.

Source: Entergy 2007a Figure 5: IP2 intake system (left) and IP3 intake system (right)

There are two spray-wash systemsthe high-pressure spray wash removes debris from the front of the traveling screen mechanism; the low-pressure spray washes fish from the rear of the mechanism into a fish sluice system to return them to the river. A 0.25 x 0.5-inch (in.)

(0.635 x 1.27-centimeter (cm)) clear opening slot mesh on the screen basket panels was included to minimize abrasion as the fish were washed into the collection sluice. The sluice system is a 12-in.-diameter (30.5-cm-diameter) pipe that discharges fish into the river at a depth of 35 ft (10.7 m), 200 ft (61 m) from shore (CHGEC 1999).

Status Review of Shortnose Sturgeon Life History The shortnose sturgeon (Acipenser brevirostrum, family Acipenseridae) is amphidromous, with a range extending from the St. Johns River, FL, to the St. John River, Canada. Unlike anadromous species, shortnose sturgeon spend the majority of their lives in freshwater and move into salt water periodically without relation to spawning (Collette and Klein-MacPhee, 2002). From colonial times, shortnose sturgeon have rarely been the target of commercial fisheries but have frequently been taken as incidental bycatch in Atlantic sturgeon and shad gillnet fisheries (NEFSC 2006; Dadswell et al. 1984). The shortnose sturgeon was listed on March 11, 1967, as endangered under the ESA. In 1998, NMFS completed a recovery plan for the shortnose sturgeon (NMFS 1998).

Shortnose sturgeon can grow up to 143 cm (56 in.) in total length and can weigh up to 23 kilograms (kg) (51 pounds [lb]). Females are known to live up to 67 years, while males typically do not live beyond 30 years. As young adults, the sex ratio is 1:1; however, among fish larger than 90 cm (35 in.), measured from nose to the fork of the tail, the ratio of females to males increases to 4:1. Throughout the range of the shortnose sturgeon, males and females mature at 45 to 55 cm (18 to 22 in.) fork length, but the age at which this length is achieved varies by geography. At the southern extent of the sturgeons range, in Florida, males reach maturity at age two, and females reach maturity at six years or younger; in Canada, males can reach maturity as late as 11 years, and females, 13 years. In one to two years after reaching maturity, males begin to spawn at two-year intervals, while females may not spawn for the first time until five years after maturing and, thereafter, spawn at three- to five-year intervals (Dadswell et al. 1984).

In the Hudson River, shortnose sturgeon migrate into freshwater to spawn during late winter or early summer when water temperatures are between 8 and 15 degrees C (NMFS 2009). Eggs sink and adhere to the hard surfaces on the river bottom, hatching after 4 to 6 days. Larvae consume their yolk sac and begin feeding in 8 to 12 days, as they migrate downstream away from the spawning site, remaining close to the river bottom (Kynard 1997; Collette and Klein-MacPhee 2002). The juveniles, which feed on benthic insects and crustaceans, do not migrate to the estuaries until the following winter, where they remain for three to five years. As adults, they migrate to the near-shore marine environment, where their diet consists of mollusks and large crustaceans (Dadswell 1984).

Status of Shortnose Sturgeon in Hudson River Shortnose sturgeon inhabit the lower Hudson River; the Federal Dam creates a physical barrier preventing the species from swimming farther north. They are found dispersed throughout the river-estuary from late spring to early fall and then congregate to winter near Sturgeon Point (RM 86). Spawning occurs in the spring, just downstream of the Federal Dam at Troy, between RM 118 and 148 (between Coxsackie and Troy) (Bain et al. 2007; NMFS 2000). According to the NMFS environmental assessment (2000) for a permit for the incidental take of shortnose sturgeon at the nearby power plants, Roseton and Danskammer, larvae are typically found upstream of the intakes of all five power plants along the mid-Hudson River.

The Hudson River population of the shortnose sturgeon was estimated to be approximately 13,000 adults in 1979-1980. Based on population studies done in the mid-1990s, the population has apparently increased as much as 400 percent since then, up to almost 57,000 adult fish. Bain et al. (2007) suggested that the total population of the shortnose sturgeon in the Hudson River is approximately 61,000, including juveniles and nonspawning adults, although NMFS (2009) indicates that the adult population may be less than half that size (approximately 30,000 individuals). Woodland and Secor (2007) ascribed the population growth to several strong year-classes and two decades of sustained annual recruitment. Bain et al.

(2007) maintained that the annual trawl surveys conducted by the electric utilities (CHGEC 1999) show an increase in abundance between the mid-1980s and mid-1990s, supporting the finding that the Hudson River population has increased. The NRC staff assessed the population trend for yearling and older shortnose sturgeon in the fall juvenile survey data provided by the applicant and found a small but statistically significant increase in the catch-per-unit-effort from 1975 to 2005.

Impact Assessment of Indian Point on the Shortnose Sturgeon Population Entrainment The southern extent of the shortnose sturgeon spawning area in the Hudson River is approximately RM 118 (RKM 190), about 75 RM (121 RKM) upstream of the intake of IP2 and IP3 (NMFS 2000). The eggs of shortnose sturgeon are demersal, sinking and adhering to the bottom of the river, and, upon hatching, the larvae in both yolk-sac and post-yolk-sac stages remain on the bottom of the river, primarily upstream of RM 110 (RKM 177) (NMFS 2000).

Shortnose sturgeon larvae grow rapidly, and, after a few weeks, they are too large to be entrained by the cooling intake (Dadswell 1979). Because the egg and larval life stages of the shortnose sturgeon (the life stages susceptible to entrainment) are not found near the intake for IP2 and IP3, the probability of their entrainment at IP2 and IP3 is low.

IP2 and IP3 monitored entrainment from 1972 through 1987. Entrainment monitoring became more intensive at Indian Point from 1981 through 1987, and sampling was conducted for nearly 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> per day, four to seven days per week, during the spawning season in the spring (NMFS 2000). Entrainment monitoring reports list no shortnose sturgeon eggs or larvae at IP2 and IP3. NMFS (2000) lists only eight sturgeon larvae collected at any of the mid-Hudson River power plants (all eight were collected at Danskammer, and four of the eight may have been Atlantic sturgeon). Entrainment sampling data supplied by the applicant (Entergy 2007b) include large numbers of larvae for which the species could not be determined, although sturgeon larvae are distinctive and most likely were identified when they occurred. Entergy currently conducts no monitoring program to record entrainment at IP2 and IP3, and any entrainable life stages of the shortnose sturgeon taken in recent years would go unrecorded.

Based on the life history of the shortnose sturgeon, the location of spawning grounds within the Hudson River, and the patterns of movement for eggs and larvae, the number of shortnose sturgeon in early life stages entrained at IP2 and IP3 is probably low or zero. The available data from past entrainment monitoring do not indicate that entrainment was occurring. Therefore, the NRC staff concludes that the continued operation of Indian Point for an additional 20 years is not likely to adversely affect the population of shortnose sturgeon in the Hudson River through entrainment.

Impingement IP2 and IP3 monitored impingement of most fish species daily until 1981, reduced collections to a randomly selected schedule of 110 days per year until 1991, and then ceased monitoring in 1991 with the installation of the modified Ristroph traveling screens. IP2 and IP3 monitored the impingement of sturgeon species daily from 1974 through 1990 (Entergy 2009). As described in Section 2.2.5.3 of the 2008 draft SEIS (NRC 2008) and the final SEIS (NRC 2010), the Ristroph screens, installed in 1990 and 1991, were designed in a collaborative effort with the Hudson River Fishermens Association to minimize the mortality of impinged fish.

In 2000, NMFS prepared an environmental assessment (EA) for the incidental take of shortnose sturgeon at Roseton and Danskammer (NMFS 2000). The EA included the estimated total number (Table 1) of shortnose sturgeon impinged at Roseton, Danskammer, Bowline Point, Lovett, and IP2 and IP3, with adjustments to include the periods when sampling was not conducted.

Table 1: Estimated Total and Average Shortnose Sturgeon Impinged by Mid-Hudson River Power Plants, Adjusted for Periods Without Sampling 1972-1998 1989-1998 Average No. Average No.

Power Plant Total Impinged/Year Total Impinged/Year Bowline Point 23 0.9 0 0 Lovett 0 0 0 0 IP2 37 1.4 8 0.8 IP3 26 1.0 8 0.8 Roseton 49 1.8 15 1.5 Danskammer Point 140 5.2 44 4.4 Total 275 10.2 75 7.5 Source: Adapted from NMFS 2000.

Entergy (2009) provided revised shortnose sturgeon impingement data (Table 2), which are available through the NRCs online Agencywide Documents Access and Management System (ADAMS). The average impingement rate of shortnose sturgeon at IP2 and IP3 combined from 1975 through 1990 is about four fish per year. Appendix 1 to this BA reproduces detailed information from Entergy (2009) on the impinged fish. These data are the most recent and complete available.

An increase in the population of shortnose sturgeon in the Hudson River would most likely result in an increase in impinged shortnose sturgeon at IP2 and IP3. If the population data presented by Bain et al. (2007) and Woodland and Secor (2007) are accurate, then a four-fold increase in population between the mid-1980s and mid-1990s could result in a similar increase in impingement rates. Impingement data (Table 2), however, do not increase concomitantly with population through 1990. A population increase would mean that the population-level effect of taking an individual shortnose sturgeon would decrease.

When considering the effects of impingement, it is important to consider the affected species impingement mortality rate. For IP2 and IP3, however, there are few data regarding the survival of the shortnose sturgeon after impingement. In 1979, NMFS issued a biological opinion (BO) relating to the take of shortnose sturgeon at Indian Point (Dadswell 1979). At the time, there was only one year in which records describing the status of impinged shortnose sturgeon were kept. In that year, 60 percent of collected impinged shortnose sturgeon were dead when collected. The BO assumed both that all dead sturgeon died as a result of the impingement and that no impingement-related mortality occurred after the impinged sturgeon were released.

Table 2: Estimated* Numbers of Impinged Shortnose Sturgeon from Impingement Monitoring at Indian Point Units 2 and 3 Year Unit 2 Unit 3 1975 3 NA 1976 2 0 1977 11 2 1978 5 5 1979 4 3 1980 0 2 1981 0 0 1982 0 0 1983 0 0 1984 3 2 1985 0 0 1986 0 0 1987 0 2 1988 7 2 1989 0 2 1990 3 0 Yearly Mean 2.8 1.2 Sum of Unit 4.0 Yearly Means

• Numbers are corrected for collection efficiency and then rounded to whole numbers.

NA means data not available.

Source: Entergy 2009, ML091950345 The BO estimated that, in a worst-case scenario, 35 shortnose sturgeon would be impinged at IP2 and IP3 per year, and that 60 percent (21 individuals) would die on the intake screens. At the time, the population of adult shortnose sturgeon in the Hudson River was estimated to be 6,000, and this level of mortality would result in a 0.3 to 0.4 percent death rate caused by impingement at IP2 and IP3 (Dadswell 1979). The average yearly impingement rate from 1975 through 1990 based on revised data (Entergy 2009) is about four shortnose sturgeon, a rate almost an order of magnitude lower than Dadswells (1979) worst-case assumption of 35 fish per year in the BO. Also, as stated above, the population of shortnose sturgeon in the Hudson River has increased and the population-level effect of IP2/IP3 impingement is thus lower than was previously estimated by NMFS in its BO.

Because all monitoring of impingement ceased after the Ristroph screens were installed in 1991, no updated mortality rate estimates for impinged shortnose sturgeon exist at IP2 and IP3.

The NRC staff does not know the current level of impingement or the level of mortality.

Although the laboratory and field tests (Fletcher 1990) performed on the modified Ristroph screens were not conducted using the shortnose sturgeon, the tests did show that injury and death were reduced for most species when compared to the first version of screens that were proposed (and rejected, based on their unexceptional performance) (Fletcher 1990). If the NRC staff assumes that the modified Ristroph screens performed as well as the Fletchers 1990 results indicated, then mortality and injury from impingement would be lower than reported by the NMFS in its BO (Dadswell 1979), and the impact to the species would be less. Without current monitoring, however, the NRC staff cannot confirm this.

In its BO, NMFS (Dadswell 1979) found that that operation of IP2 and IP3 is not likely to jeopardize the continued existence of the shortnose sturgeon because, even assuming 100%

mortality of the impinged fish, its contribution to the natural annual mortality is negligible. The NRC staff finds that the best estimate of takes of shortnose sturgeon by IP2 and IP3 based on revised data (Entergy 2009) is much less than that assumed by Dadswell (1979) in the NMFS BO, that installation of Ristroph screens since the original BO was prepared may have decreased the mortality rate of shortnose sturgeon that are impinged, and that the population of shortnose sturgeon in the Hudson River is increasing although impingement rates appear not to have increased concomitantly through 1990. The NRC staff recognizes the difficulties in drawing conclusions from two-decade old impingement data and incomplete impingement mortality data, but concludes that, based on the best available information, impingement and entrainment resulting from operation of IP2 and IP3 for an additional 20 years beyond the original license term are not likely to jeopardize the continued existence of the endangered shortnose sturgeon in the Hudson River.

Thermal Impacts The discharge of heated water into the Hudson River can cause lethal or sublethal effects on resident fish, influence food web characteristics and structure, and create barriers to migratory fish moving from marine to freshwater environments.

State Pollution Discharge Elimination System (SPDES) permit NY-0004472 regulates thermal discharges associated with the operation of IP2 and IP3. This permit imposes effluent limitations, monitoring requirements, and other conditions to ensure that all discharges are in compliance with Article 17 of the Environmental Conservation Law of New York State, Part 704 of the Official Compilation of the Rules and Regulations of the State of New York, and the Clean Water Act. Specific conditions of the SPDES permit related to thermal discharges from IP2 and IP3 are specified by NYSDEC (2003) and include the following:

The maximum discharge temperature is not to exceed 110 degrees F (43 degrees C).

The daily average discharge temperature between April 15 and June 30 is not to exceed 93.2 degrees F (34 degrees C) for an average of more than 10 days per year during the term of the permit, beginning in 1981, provided that it not exceed 93.2 degrees F (34 degrees C) on more than 15 days during that period in any year.

The final environmental impact statement (FEIS) associated with the SPDES permit for IP2 and IP3 (NYSDEC 2003) concludes that Thermal modeling indicates that the thermal discharge from Indian Point causes water temperatures to rise more than allowed. The thermal modeling referred to in the FEIS appears to represent a worst-case scenario; the modeling indicates the potential for the discharges from IP2 and IP3 to violate the conditions of the IP2 and IP3 SPDES permit, which could result in a negative impact on the shortnose sturgeon. IP2 and IP3 have not yet completed triaxial thermal studies, to completely assess the size and nature of the thermal plume created by the discharge from IP2 and IP3 and the possible impact on the sturgeon. The NRC staff understands, however, that Entergy has collected triaxial thermal data, and will submit a final, verified thermal model to NYSDEC in the next year.

According to the NMFS Final Recovery Plan for the Shortnose Sturgeon (NMFS 1998), During summer months, especially in southern rivers, shortnose sturgeon must cope with the physiological stress of water temperatures that often exceed 82 degrees F (28 degrees C).

Although the area closest to the discharge from IP2 and IP3 can exceed these temperatures, the summer maximum temperature of the Hudson River in the area of IP2 and IP3 is 77 degrees F (25 degrees C) (Entergy 2007a). The combined discharge from both Indian Point units is about 1.75 million gpm (110 m3/s), including the service water (Entergy 2007a).

Table 3 presents the net downstream flow (controlling for the influence of tides) of the Hudson River at Indian Point. These data suggest that discharges from IP2 and IP3 equal, at most, 15% of the river flow 20% of the time, while up to 2% of the time, IP2 and IP3 discharges equal 97% or more of the downstream river flow. This variation -

due to differences in seasonal precipitation, tidal influence, and other factors - suggests that discharges may mix in very different ways under different conditions.

Table 3: Cumulative Frequency Distribution of Net Downstream Flows of Hudson River Million gallons per Cumulative minute (gpm) percentile 11.7 20 6.8 40 4.71 60 3.1 80 1.8 98 Adapted from Entergy 2007a The NRC staff cannot determine, based on available information, whether a shortnose sturgeon in the Hudson River would experience any prolonged physiological stress from the thermal plume caused by the discharge from IP2 and IP3. Shortnose sturgeon could be forced to seek refuge from elevated water temperatures as they are forced to do in southern rivers, and this could limit their available habitat. If studies reveal that the plume is buoyant, shortnose sturgeon could pass underneath the plume on their passage past the facility, but there are no data to indicate that this is the case.

As noted earlier, the NYSDEC thermal modeling of the Hudson River suggests that the discharge from IP2 and IP3 could exceed the limits specified in the SPDES permit, but without a triaxial thermal study, the exact size and nature of the thermal plume is unknown. Information about the species, based on the NMFS recovery plan, suggests that increased temperatures can have a significant effect on the shortnose sturgeon. Therefore, the NRC staff concludes that the continued thermal effects from operation of IP2 and IP3 for an additional 20 years could potentially adversely affect the population of shortnose sturgeon in the Hudson River through thermal discharge, but the staff is unable to determine the extent to which the population would be affected.

Conclusion Renewal of the operating licenses of IP2 and IP3 to include another 20 years of operation could potentially adversely affect the population of shortnose sturgeon in the Hudson River due to the thermal effects of once-through cooling. An analysis of the revised impingement data recently submitted by Entergy indicates that impingement and entrainment would not adversely affect the population of shortnose sturgeon. Sufficient information is not available at this time for the NRC staff to quantify the extent to which the shortnose sturgeon population could be affected by thermal effects, though forthcoming data is likely to provide additional information.

References Bain, M.B., Haley, N., Peterson, D.L., Arend, K.K., Mills, K.E., and Sullivan, P.J. 2007.

Recovery of a US Endangered Fish, PLoS ONE 2(1): e168. Accessed at:

http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0000168#s3 on December 11, 2007.

Central Hudson Gas and Electric Corporation (CHGEC), Consolidated Edison Company of New York, Inc., New York Power Authority, and Southern Energy New York. 1999. Draft Environmental Impact Statement for State Pollutant Discharge Elimination System Permits for Bowline Point, Indian Point 2 and 3, and Roseton Steam Electric Generating Stations. ADAMS Accession No. ML083400128.

Collette, B.B. and Klein-MacPhee, G., eds. 2002. Short-nosed sturgeon, Bigelow and Schroeders Fishes of the Gulf of Maine, Third Edition, Smithsonian Institution Press:

Washington, DC.

Dadswell, M.J. 1979. Testimony on behalf of the National Marine Fisheries Service, presented before the U.S. Environmental Protection Agency, Region II, May 14, 1979. ADAMS Accession No. ML083430546.

Dadswell, M.J., Taubert, B.D., Squiers, T.S., Marchette, D., and Buckley, J. 1984. Synopsis of Biological Data on Shortnose Sturgeon, Acipenser brevirostrum LeSueur 1818, NOAA Technical Report NMFS-14, FAO Fisheries Synopsis No. 140. Accessed at:

http://www.nmfs.noaa.gov/pr/pdfs/species/shortnosesturgeon_biological_data.pdf on December 11, 2007.

Entergy Nuclear Operations, Inc. (Entergy). 2007a. Applicants Environmental Report, Operating License Renewal Stage (Appendix E to Indian Point, Units 2 & 3, License Renewal Application), April 23, 2007. ADAMS Accession No. ML071210530.

Entergy Nuclear Northeast (Entergy). 2007b. Letter from F. Dacimo, Vice President, Entergy Nuclear Northeast, to U.S. Nuclear Regulatory Commission Document Control Desk.

Reference NL-07-156.

Subject:

Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 & 3, Docket Nos. 50-247 and 50-286, Supplement to License Renewal Application (LRA)Environmental Report References. December 20, 2007. ADAMS Accession Nos. ML080080205, ML080080209, ML080080213, ML080080214, ML080080216, ML080080291, ML080080298, ML080080306.

Entergy Nuclear Northeast (Entergy). 2009. Letter from F. Dacimo, Vice President, Entergy Nuclear Northeast, to U.S. Nuclear Regulatory Commission Document Control Desk.

Reference NL-09-091.

Subject:

Transmission of Additional Requested Information Regarding Sturgeon Impingement Data Indian Point Nuclear Generating Unit Nos. 2 & 3 Docket Nos. 50-247 and 50-286 License Nos. DPR-26 and DPR-64. July 1, 2009. ADAMS Accession No. ML091950345.

Fletcher, R.I. 1990. Flow dynamics and fish recovery experiments: water intake systems, Transactions of the American Fisheries Society 119:393-415.

Kynard, B. 1997. Life history, latitudinal patterns, and status of the shortnose sturgeon Acipenser brevirostrum, Environmental Biology of Fishes 48: 319-334.

National Marine Fisheries Service (NMFS). No date. Shortnose Sturgeon (Acipenser brevirostrum), Office of Protected Resources (OPR). Accessed at:

http://www.nmfs.noaa.gov/pr/species/fish/shortnosesturgeon.htm on December 11, 2007.

ADAMS Accession No. ML083430566.

National Marine Fisheries Service (NMFS). 1998. Recovery Plan for the Shortnose Sturgeon (Acipenser brevirostrum), prepared by the Shortnose Sturgeon Recovery Team for the National Marine Fisheries Service, Silver Spring, Maryland. Accessed at:

http://www.nmfs.noaa.gov/pr/pdfs/recovery/sturgeon_shortnose.pdf on December 11, 2007.

National Marine Fisheries Service (NMFS). 2000. Environmental Assessment of a Permit for the Incidental Take of Shortnose Sturgeon at the Roseton and Danskammer Point Generating Stations. ADAMS Accession No. ML083430553.

National Marine Fisheries Service (NMFS). 2007. Letter from M. Colligan, Assistant Regional Administrator for Protected Resources, National Marine Fisheries Service to Chief, Rules and Directives Branch, U. S. Nuclear Regulatory Commission.

Subject:

Response to request for information regarding threatened and endangered species in the vicinity of Indian Point.

October 4, 2007. ADAMS Accession No. ML073340068.

National Marine Fisheries Service (NMFS). 2009. Letter from M. Colligan, Assistant Regional Administrator for Protected Resources, National Marine Fisheries Service to Chief, Rules and Directives Branch, U. S. Nuclear Regulatory Commission.

Subject:

Biological Assessment for License Renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3. February 24, 2009.

ADAMS Accession No. ML090820316.

National Marine Fisheries Service (NMFS). 2010. E-mail correspondence from J. Crocker to D. Logan, NRC. November 10, 2010. ADAMS Accession No. ML103400027.

New York State Department of Environmental Conservation (NYSDEC). 2003. Final Environmental Impact Statement Concerning the Applications to Renew New York State Pollutant Discharge Elimination System (SPDES) Permits for the Roseton 1 and 2 Bowline 1 and 2 and IP2 and IP3 2 and 3 Steam Electric Generating Stations, Orange, Rockland and Westchester Counties, Hudson River Power Plants FEIS, June 25, 2003. ADAMS Accession No. ML083360752.

Nuclear Regulatory Commission (NRC). 1996. Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants, NUREG-1437, Volumes 1 and 2, Washington, DC.

Nuclear Regulatory Commission (NRC). 1999. Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Main Report, Section 6.3, Transportation, Table 9.1, Summary of Findings on NEPA Issues for License Renewal of Nuclear Power Plants, NUREG-1437, Volume 1, Addendum 1, Washington, DC.

Nuclear Regulatory Commission (NRC). 2007. Letter from R. Franovich to Mr. Peter Colosi, National Marine Fisheries Service, Gloucester, Massachusetts, Re: Request for List of Protected Species and Essential Fish Habitat Within the Area under Evaluation for the Indian Point Nuclear Generating Unit Nos. 2 and 3 License Renewal Application Review, August 16, 2007. ADAMS Accession No. ML072130388.

Nuclear Regulatory Commission (NRC). 2008. Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants: Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment. NUREG-1437, Supplement 38, Volumes 1 & 2. December 22, 2008. Washington, DC. ADAMS Accession No. ML083540594.

Nuclear Regulatory Commission (NRC). 2010. Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report. Final NUREG-1437, Supplement 38, Volumes 1, 2, and 3. December 3, 2010. Washington, DC. ADAMS Accession Nos. ML103350405, ML103350438, ML103360209, ML103360212, and ML103350442.

Shepherd, G. 2006. Shortnose Sturgeon (Acipenser brevirostrum), National Marine Fisheries Service (NOAA), Office of Protected Resources (OPR). Last updated in December 2006.

Accessed at: http://www.nefsc.noaa.gov/sos/spsyn/af/sturgeon/archives/42_Atlantic_

ShortnoseSturgeon_2006.pdf on December 11, 2007. ADAMS Accession No. ML083430573.

Woodland, R.J. and Secor, D.H. 2007. Year-class strength and recovery of endangered shortnose sturgeon in the Hudson River, New York, Transactions of the American Fisheries Society 136:72-81.

Appendix 1 to Biological Opinion This appendix presents a reproduction of Tables 2a, 2b and 4 from Entergy (2009) showing detailed information on shortnose sturgeon impinged at IP2 and IP3 for the years 1974 through 1990. The Entergy submittal is available at ADAMS Accession No. ML091950345.

Attachment 3 July 2011 NRC Supplement to Revised Biological Assessment

Attachment 4 May 2012 NRC Biological Assessment

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 May 16, 2012 Ms. Patricia A. Kurkul Northeast Regional Administrator National Marine Fisheries Service 55 Great Republic Dr.

Gloucester, MA 01930-2276

SUBJECT:

REQUEST TO REINITIATE SECTION 7 CONSULTATION FOR THE INDIAN POINT NUCLEAR GENERATING UNIT NOS. 2 AND 3 DUE TO LISTING OF ATLANTIC STURGEON

Dear Ms. Kurkul:

The staff of the U.S. Nuclear Regulatory Commission (NRC, the staff) hereby requests reinitiation of section 7 consultation under the Endangered Species Act of 1973, as amended (ESA), for Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), which was recently listed under the ESA, at Indian Point Nuclear Generating Unit Nos. 2 and 3 (Indian Point, IP2 and IP3). IP2 and IP3 have once-through cooling systems with intake structures located on the eastern shore of the Hudson River at approximately river mile 43.

In December 2008, previous to this request, the NRC submitted a biological assessment for the endangered shortnose sturgeon (Acipenser brevirostrum) along with the draft supplemental environmental impact statement for license renewal for IP2 and IP3 (draft IP SEIS) . For that assessment, the proposed Federal action was the renewal of the operating licenses of IP2 and IP3 for an additional 20-year period beyond the period of the existing licenses, which expire on September 28,2013, and December 12, 2015, respectively.

On February 24, 2009, the National Marine Fisheries Service (NMFS) requested additional information on shortnose sturgeon. In response, the NRC submitted a revised biological assessment for the endangered shortnose sturgeon, with some information on the Atlantic sturgeon (a candidate species at the time), to your office via letter dated December 10, 2010.

The revised biological assessment included, among other things , the numbers of both Atlantic and shortnose sturgeon impinged at IP2 and IP3 and a summary of individual collection records for shortnose sturgeon. The finallP SEIS, which NRC transmitted to NMFS on December 10, 2010, contains life history information for both sturgeon species. The finallP SEIS, the NRC's 2010 revised biological assessment for shortnose sturgeon, and Barnthouse et al.'s 2011 technical assessment for shortnose sturgeon provide descriptions of the cooling water system in relation to effects on biota . The NRC has previously submitted each of these documents to NMFS. No entrainment of sturgeon species has been reported at IP2 and IP3.

P. Kurkul -2 At the time the NRC staff developed its December 2010 revised biological assessment, Entergy Nuclear Operations, Inc. (Entergy) had not yet completed its survey of Indian Point's heated discharges, and the staff was unable to provide a specific assessment of thermal effects. In June 2011, the NRC staff learned that Entergy had submitted a final, verified triaxial thermal model to the New York State Department of Environmental Conservation (NYSDEC) concerning aquatic conditions at Indian Point and that NYSDEC had accepted and relied on that model and Entergy's associated information to reach its conclusions about thermal conditions at Indian Point for inclusion in a draft State Pollutant Discharge Elimination System permit. With the new information, the NRC provided an additional and updated assessment of the thermal effects on operation of IP2 and IP3 on the shortnose and Atlantic sturgeon species in a supplement to its 2010 revised biological assessment on July 26, 2011. On October 14, 2011, NMFS issued its biological opinion on the effects of IP2 and IP3 operation on the endangered shortnose sturgeon for the proposed period of continued operation, under the scenario that NRC decides to renew the operating licenses for an additional 20 years each . The biological opinion concluded the formal consultation process and provided an incidental take statement that specifies non-discretionary reasonable and prudent measures necessary to minimize and monitor incidental take of shortnose sturgeon.

On February 6, 2012, NMFS listed five distinct population segments of the Atlantic sturgeon as threatened or endangered species under the ESA. Atlantic sturgeon in the Hudson River near Indian Point are part of the New York Bight distinct population segment (DPS), which is listed as endangered. In response to this recent listing of the Atlantic sturgeon New York Bight DPS, the NRC requests reinitiation of section 7 consultation for the remaining period of the existing licenses for IP2 and IP3 and the additional 20-year license renewal period, if granted.

In addition to the information already submitted to NMFS, the attached biological assessment for reinitiation contains information on individual impingement samples of Atlantic sturgeon. The NMFS had previously requested, and NRC had provided, the same type of specific information for shortnose sturgeon for NMFS's preparation of the biological opinion during the previous consultation. In addition, the attached biological assessment provides information on the degree to which the number of impinged Atalntic sturgeon tracks the population size of young sturgeon. The NMFS used such information in its shortnose sturgeon biological opinion.

In the enclosed biological assessment for reinitiation of section 7 consultation, the NRC staff concludes that operation of IP2 and IP3 may affect, but is not likely to adversely affect, the Atlantic sturgeon during the remainder of the current operating license period and the 20-year license renewal term (through September 28, 2033, and December 12, 2035, respectively), if granted.

The NRC requests that NRC and NMFS conclude section 7 consultation within 90 days and that the NMFS issue its biological opinion 45 days thereafter per 50 CFR 402.14(e) (135 days total).

If your office requires more time to complete the biological opinion, the NRC requests that you provide NRC with a request for such an extension in order that the NRC may appropriately consider that request and coordinate with Entergy. The NRC would also like to have the opportunity to review a draft biological opinion prior to NMFS's issuance of a final biological opinion. As you may know, the licensee, Entergy, has requested that consultations be conducted expeditiously and would like to participate in this consultation.

P. Kurkul -3 Please contact Dr. Dennis Logan, Aquatic Biologist, of my staff to advise of any additional information you might need to assess the potential impacts to the Atlantic sturgeon at Indian Point. You can reach him at 301-415-0490 or bye-mail at Dennis.Logan@nrc.gov.

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 section 7 consultations related to operating nuclear power plants within the NMFS's northeast region.

Jeremy J. Susco, Acting Chief Environmental Review and Guidance Update Branch Division of License Renewal Office of Nuclear Reactor Regulation Docket Nos. 50-247 and 50-286

Enclosure:

As stated cc w/encl : Listserv

BIOLOGICAL ASSESSMENT FOR REINITIATION OF SECTION 7 CONSULTATION FOR THE INDIAN POINT NUCLEAR GENERATING PLANT, UNIT NOS. 2 AND 3 DUE TO LISTING OF ATLANTIC STURGEON May 2012 Docket Numbers 50-247, 50-286 U.S. Nuclear Regulatory Commission Rockville, Maryland Prepared by:

Dennis Logan Division of License Renewal Office of Nuclear Reactor Regulation Valerie Cullinan Pacific Northwest National laboratory

Table of Contents 1.0 Introduction .............................................................................................................1 2.0 Description of the Action ........................................................................................1 3.0 Federally Listed Species Considered .................................................................... 1 3.1 Listed Species Previously Considered ................................................................... 1 3.2 Atlantic Sturgeon ...................................................................................................2 3.2.1 Life History ......................................................................................................2 3.2.2 Distribution ......................................................................................................2 3.2.3 Population Status ............................................................................................2 3.2.4 Listing History ..................................................................................................3 4.0 Action Effects Analysis ...........................................................................................3 5.0 Conclusion and Determination of Effects.............................................................. 6 6.0 References ...............................................................................................................6 ii

Abbreviations, Acronyms, and Symbols

°C degrees Celsius

°F degrees Fahrenheit ASMFC Atlantic States Marine Fisheries Commission BSS Beach Seine Survey cm centimeter CPUE catch per unit effort DPS distinct population segment Entergy Entergy Nuclear Operations, Inc.

ESA Endangered Species Act of 1973, as amended FR Federal Register FSS Fall Shoals Survey ft foot in. inch kg kilogram lb pound LRS Longitudinal River Ichthyoplankton Survey m meter m3 cubic meters NMFS National Marine Fisheries Service NRC U.S. Nuclear Regulatory Commission NRDC Natural Resources Defense Council SEIS supplemental environmental impact statement SPDES State Pollutant Discharge Elimination System YOY young-of-the-year iii

Biological Assessment for Reinitiation of Section 7 Consultation for the Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 Due to Listing of Atlantic Sturgeon 1.0 Introduction On February 6, 2012, the National Marine Fisheries Service (NMFS) listed five distinct population segments (DPSs) of the Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) under the Endangered Species Act of 1973, as amended (ESA) (77 FR 5880; 77 FR 5914). As a result of the Atlantic sturgeons listing, the U.S. Nuclear Regulatory Commission (NRC or the staff) has reviewed the potential for each NRC-licensed operating reactor to adversely affect the Atlantic sturgeon. The NRC staff identified Indian Point Nuclear Generating Unit Nos. 2 and 3 (Indian Point or IP2 and IP3), operated by Entergy Nuclear Operations, Inc. (Entergy), as a facility that has the potential to adversely affect Atlantic sturgeon. In the Hudson River near Indian Point, Atlantic sturgeon would belong to the New York Bight DPS, which is endangered.

The NMFS (2011a, 2011b) recently issued a biological opinion for shortnose sturgeon (Acipenser brevirostrum) at IP2 and IP3. As a result of NMFSs recent listing of the New York Bight DPS as endangered, the NRC staff prepared this biological assessment in connection with its request to reinitiate section 7 consultation for the newly listed Atlantic sturgeon. The NRC provided much of the information needed for this biological assessment in its final supplemental environmental impact statement for IP2 and IP3 (IP SEIS) (NRC 2010a) and the revised biological assessment for shortnose sturgeon (NRC 2010b) and its supplement (NRC 2011).

Entergy (2011a) and its consultants (Barnthouse et al. 2011) provided additional information to NMFS on shortnose and Atlantic sturgeon in the Hudson River, the characteristics of IP2 and IP3, and the facilitys effects on the two sturgeon species. Entergy (2012) listed and reviewed some of the reports with information on the effects of IP2 and IP3 on Atlantic sturgeon. This biological assessment provides additional information pertinent to reinitiation of section 7 consultation and the NRCs assessment of the effects of IP2 and IP3 on Atlantic sturgeon.

2.0 Description of the Action The action that this biological assessment considers is the continued operation of IP2 and IP3 through the end of the current licenses and the potentially renewed license terms. Entergy owns and operates IP2 and IP3 and has submitted an application to NRC to renew the operating licenses of IP2 and IP3 for an additional 20 years. The NRC is presently reviewing that application. The NRCs (2010a) IP SEIS and supplemental biological assessment (NRC 2010b) describe the facility, the site location, the cooling water system and its operation, and the action area (the Hudson River). That discussion is incorporated by reference here. The action area for Atlantic sturgeon is the same as the action area that NMFS (2011a) describes in its biological opinion for shortnose sturgeon and includes the intake areas of IP1 (for service water), IP2, and IP3, and the region where the thermal plume extends into the Hudson River from IP2 and IP3.

3.0 Federally Listed Species Considered 3.1 Listed Species Previously Considered As part of the NRCs review of the license renewal application for IP2 and IP3, the staff prepared the IP SEIS (NRC 2010a) that considered the potential effects of license renewal on Federally listed species. The SEIS, the revised biological assessment of December 10, 2010, 1

and its supplement of July 26, 2011, analyzed the effects of license renewal on the shortnose sturgeon and the Atlantic sturgeon, which was a candidate for Federal listing at the time.

3.2 Atlantic Sturgeon 3.2.1 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; NMFS 2012). Atlantic sturgeon are similar in appearance to shortnose sturgeonbluish-black to olive brown dorsally with pale sides and underbellybut are larger in size and have a smaller and differently shaped mouth (NMFS 2012). Females reach maturity at 7 to 30 years of age, and males reach maturity at 5 to 24 years of age, with fish inhabiting the southern range maturing earlier (ASMFC 2007). Females return to natal freshwater rivers to spawn between April and May. Females lay 400,000 to 4 million highly adhesive eggs, which fall to the bottom of the water column and adhere to cobble or other hard bottom substrate. Eggs hatch to yolk-sac larvae in 94 to 140 hours0.00162 days <br />0.0389 hours <br />2.314815e-4 weeks <br />5.327e-5 months <br /> at temperatures of 20°C (68°F) and 18°C (64.4°F), respectively (ASSRT 2007). The larvae absorb their yolk in 8 to 12 days, during which time the post yolk-sac larvae migrate downstream into brackish water, where they live for a few months (ASSRT 2007). Larvae are demersal and use benthic structures as refugia; thus, they are typically not found in the water column (ASSRT 2007).

When juveniles reach a size of 30 to 36 in. (76 to 92 cm), they migrate to nearshore coastal waters, where they feed on benthic invertebrates, including crustaceans, worms, and mollusks (NMFS 2012). Juveniles and non-spawning adults inhabit estuaries and coastal marine waters dominated by gravel and sand substrates (NMFS 2012).

3.2.2 Distribution Historically, the Atlantic sturgeon has inhabited riverine, estuarine, and coastal ocean waters from St. Lawrence River, Canada to St. Johns River, Florida (ASMFC 2007). Within the U.S.,

the species was present in approximately 38 rivers from St. Croix, Maine to Saint Johns River, Florida. Currently, the species resides in 36 U.S. rivers and spawns in at least 20 of these rivers (ASSRT 2007). Barnthouse et al. (2011) describe temporal and spatial distribution of young Atlantic sturgeon in the Hudson River based on the Hudson River utilities fish sampling programs.

3.2.3 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 (Shepard 2006). In 1998, the Atlantic States Marine Fisheries Commission (ASMFC), which manages the commercial harvest of the species, instituted a moratorium on Atlantic sturgeon harvest in U.S. waters (NMFS 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.

In the U.S., population estimates exist for only the Hudson River, New York (approximately 870 spawning adults/year) and the Atlamaha River, Georgia (approximately 343 spawning adults/year), and these two rivers are thought to have the healthiest subpopulations within the U.S. (75 FR 61872, ASSRT 2007). The population in the Hudson River has been conservatively estimated to be 6,000 to 6,800 spawning females in the late 1800s, and the population decreased from then until perhaps 1990. Low population levels in the 1990s began 2

to increase in the late 1990s (ASSRT 2007). A catch per unit effort (CPUE) index based on density data from the Hudson River utilities Fall Shoals Survey (FSS) from 1985 through 2007 shows that the abundance of juvenile Atlantic sturgeon in the Hudson River declined sharply in 1989 and has not recovered (Figure 2 in Barnthouse et al. 2011)

North of the Hudson River in Connecticut, Atlantic sturgeon historically spawned in the Thames, Connecticut, and Housatonic Rivers, but spawning populations are unlikely today. South of the Hudson River in New Jersey, Delaware, and Pennsylvania, the Delaware River may have once supported the largest spawning stock of any Atlantic coast river (more than 180,000 spawning females), but numbers have fallen and the reproducing population is now small (ASSRT 2007).

3.2.4 Listing History In 2007, the NMFS considered listing the Atlantic sturgeon under the ESA but concluded that listing was not warranted at that time. The Natural Resources Defense Council (NRDC 2009) petitioned for the NMFS to reconsider the listing of the species (NRDC 2009). The NMFS accepted the NRDCs 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 Hudson River belong to the New York Bight DPS, which is listed as endangered. The NMFS has not designated critical habitat for Atlantic sturgeon.

4.0 Action Effects Analysis Indian Point has the potential to entrain or impinge Atlantic sturgeon when the facility withdraws Hudson River water for cooling. The heated water effluent has the potential to cause heat shock in the facilitys heated water discharge. Indian Point Unit 1 operated from 1962 through October 1974. IP2 and IP3 have been operational since 1973 and 1975, respectively. The Atlantic sturgeon population in the Hudson River has been exposed to the effects of Indian Point since 1962. The NRC is presently reviewing Entergys application for license renewals for IP2 and IP3, and, if granted, the renewed licenses could extend the exposure of Atlantic sturgeon to operation of IP2 and IP3 for an additional 20 years (i.e., through September 28, 2033 and December 12, 2035, for IP2 and IP3, respectively).

Entrainment Entrainment occurs when aquatic organisms (usually eggs, larvae, and other small organisms) are drawn into the cooling water system and are subjected to thermal, physical, and chemical stress. Because Atlantic sturgeon spawn in freshwater upstream of Indian Point and the eggs adhere to hard substrate material, the occurrence of eggs in the water column near IP2 and IP3 is unlikely, and entrainment studies at IP2 and IP3 do not report finding Atlantic sturgeon eggs or larvae in entrainment samples.

Impingement Impingement occurs when aquatic organisms are pinned against intake screens or other parts of the cooling water system intake structure. Impingement of juvenile Atlantic sturgeon can occur when juveniles migrate downstream to estuarine waters and then to near shore coastal waters when they reach larger sizes. Impingement of juvenile Atlantic sturgeon at IP2 and IP3 has been reported. Impingement of migrating adults is unlikely because adults travel up fast-flowing rivers to spawn and should be capable of avoiding impingement. Because of the large volume of water withdrawn daily when IP2 and IP3 are operating, Indian Point can impinge 3

the bodies of Atlantic sturgeon killed by causes unrelated to plant operation (e.g., strikes by boat propellers or hulls, disease, parasites, starvation, etc.).

Impingement of Atlantic sturgeon (Table 1) was recorded at IP2 and IP3 from 1975 through 1990 and is presented in Table 4-11 of the IP SEIS (NRC 2010a). Annual numbers impinged in the 1970s were much higher than in subsequent years. Appendix A provides more detailed information on the individual sturgeon impinged at IP2 and IP3. This information was provided by Entergy (2009) and is the similar to information NMFS requested for shortnose sturgeon during the consultation for that species.

The NRC staff performed an analysis of data supplied by Entergy (NAI 2008) to elucidate the degree to which numbers impinged might reflect numbers of young Atlantic sturgeon in the Hudson River subject to impingement. To examine the relationship, the staff compared the CPUEs of Atlantic sturgeon captured in the two Hudson River sampling programsthe Hudson River utilities FSS and Longitudinal River Ichthyoplankton Survey (LRS)with the annual numbers impinged at IP2 and IP3 after all numbers were standardized by subtracting the mean and dividing by the standard deviation for those programs. Staff used data supplied by Entergy (Entergy 2008, NAI 2008). All regions of the Hudson River were not sampled each year (Tables 2 and 3). To account for sampling design changes over time, the CPUE was calculated for each year and then standardized by subtracting the mean river-wide CPUE from 1979 through 1983 and dividing by the standard deviation of river-wide CPUE using years 1979 through 2005. The total number of Atlantic sturgeon impinged annually (Table 1) was standardized by subtracting the mean number impinged between 1979 and 1983 and dividing by the standard deviation of the annual number impinged using all years (1975-1990).

For young-of-the-year (YOY) and older Atlantic sturgeon, which are the age groups subject to impingement, the CPUEs for the FSS and LRS were calculated annually as the total number caught divided by the volume sampled (m3) during the surveys for 1974 through 2005. The standardized number impinged was then plotted with the standardized river-wide CPUE of the two programs by year (Figure 1). Numbers impinged appear to track the CPUE of Hudson River sampling programs, and all sampling programs indicate a decreasing population of Atlantic sturgeon. To the degree that the number impinged tracks the population size of young sturgeon, the NRC staff expects that if the Hudson River population of Atlantic sturgeon recovers, impingement at IP2 and IP3 would also increase.

Following the period of impingement monitoring through 1990, modified Ristroph screens were installed at IP2 and IP3 in 1990 and 1991 to reduce impingement mortality. Barnthouse et al.

(2011) discuss likely survival of sturgeon impinged at IP2 and IP3 and predict a high degree of survival. The NMFS (2011a) found in its biological opinion for shortnose sturgeon that installation of the modified Ristroph screens is expected to have reduced impingement mortality for shortnose sturgeon, although the degree to which these screens may have reduced impingement mortality as compared to pre-1991 levels cannot be firmly established because no monitoring occurred after the installation of the Ristroph screens and more recent data are not available. These conclusions would also apply to Atlantic sturgeon.

The staff examined the susceptibility of young Atlantic sturgeon to impingement by IP2 and IP3 in terms of the river region where the FSS caught most of the Atlantic sturgeon. The percentage of the average annual (1979 through 2005) CPUE (number/1000 m3) for the LRS and FSS in each river region (Figure 2) was calculated as the percent of the total of the number caught divided by the total volume sampled. The FSS caught most fish in the West Point through Saugerties regions of the river. A third program, the Beach Seine Survey (BSS), caught seven Atlantic sturgeon in the Tappan Zee Region and three in the Cornwall Region of the river between 1974 and 2005. The LRS caught a total of 276 YOY and older Atlantic sturgeon 4

between 1974 and 2005. Figure 2 supplements those submitted to NMFS in Figure 4 of Barnthouse et al. (2011) that show the numbers of sturgeon of all age groups caught in the LRS, BSS, and FSS combined by decade (1979-1989, 1990-1999, 2000-2006) and indicates that young Atlantic sturgeon susceptible impingement tend to be concentrated north of Indian Point. The presence of young Atlantic sturgeon in impingement samples confirms their presence in the river near Indian Point.

The numbers of Atlantic sturgeon impinged at IP2 and IP3 are higher than the numbers of shortnose sturgeon impinged (Table 1). This difference may partially reflect the relative population sizes, as the total catch of Atlantic sturgeon in the FSS from 1979 through 1990 was 694 fish compared to 88 shortnose. Besides difference in population sizes, other factors, such as differences in distribution in the river or behavior, can affect numbers impinged.

Heat Shock Heat shock is acute thermal stress caused by exposure to a sudden elevation of water temperature that adversely affects the metabolism and behavior of fish and other aquatic organisms. The NRCs (2011) supplement to the revised biological assessment discusses Entergys recent triaxial survey of the IP2 and IP3 thermal effluent and its effects on shortnose sturgeon. The NRC staff concluded that continued operation of IP2 and IP3 through the license renewal terms is not likely to adversely affect the Hudson River population of shortnose sturgeon.

NMFSs (2011a) biological opinion also concluded that the thermal effluent was not likely to have any observable adverse effects on shortnose sturgeon. Given these findings and the similarities in behavior and physiological requirements of shortnose and Atlantic sturgeon, the NRC staff expects that the thermal effluent is not likely to have any observable adverse effects on Atlantic sturgeon.

Atlantic Sturgeon Prey The food and migratory patterns of Atlantic sturgeon are generally similar to those of shortnose sturgeon, so the staff expects that the effect of operating IP2 and IP3 would be similar for the prey of both species. In its biological opinion, NMFS (2011a) stated that it appears that the prey of shortnose sturgeon, would be impacted insignificantly, if at all, by the thermal discharge from IP. The NRC staff expects that any effect on Atlantic sturgeon prey due to operation of IP2 and IP3, including entrainment and thermal effects, would also be insignificant.

Potential Discharge of Radionuclides to the Hudson River The IP SEIS (NRC 2010a) discusses the potential discharge and monitoring of radionuclides to the Hudson River. The NMFS (2011a) considers this possible stressor in its biological opinion for shortnose sturgeon at IP2 and IP3 and concludes, NMFS considers the effects to shortnose sturgeon from radionuclides to be insignificant and discountable. The NRC staff finds that these conclusions would also apply to Atlantic sturgeon.

Other Pollutants Discharged from IP2 and IP3 The 1987 State Pollutant Discharge Elimination System (SPDES) permit contains effluent limits related to an on-site sewage treatment plant, as well as cooling water discharges. The IP SEIS (NRC 2010a) discusses potential discharge and monitoring of other pollutants to the Hudson River. Because IP2 and IP3 must have a SPDES permit to operate and must operate within the terms of that permit, the staff assumes for this assessment that the plant will operate in compliance with permit limits. Therefore, the staff believes that the effects of exposure of Atlantic sturgeon to any contaminants at or below permit levels will be insignificant.

5

Cumulative Effects The NMFS (2011a) biological opinion for shortnose sturgeon considered cumulative effects and found that the effects of state water fisheries, pollution, and contaminants would be similar to the effects in the past. It also found that the degree to which effects of global climate change will increase Hudson River water temperatures are not reasonably certain but that any temperature changes are not likely to cause adverse effects over the proposed roughly 20-year period of extended operation for IP2 and IP3. The NRC staff believes NMFSs assessment and conclusions for shortnose sturgeon would also apply to Atlantic sturgeon. Any adverse effects from IP2 and IP3 on adult Atlantic sturgeon would be smaller than those for shortnose sturgeon, as Atlantic sturgeon adults spend less time in estuaries and more time at sea than adult shortnose sturgeon.

5.0 Conclusion and Determination of Effects The life history of the species and lack of evidence of entrainment indicates that eggs and larvae are unlikely to be found near Indian Point and are not affected by entrainment at IP2 and IP3. Juveniles can be found near IP2 and IP3 because they migrate downstream to estuarine waters. Though the sturgeon tend to stay in deeper channels, IP2 and IP3 do impinge some juvenile Atlantic sturgeon. Migrating adults should be able to avoid the low intake velocities of the IP2 and IP3 intake during their migrations. Installation of modified Ristroph screens in 1990 and 1991 should reduce impingement damage and mortality. A comparison of the spatial distribution of elevated water temperatures in the thermal plume with the known thermal requirements of sturgeon indicates that Atlantic sturgeon are not likely to be adversely affected by the IP2 and IP3 thermal discharge. The NRC staff believes that if the population of Atlantic sturgeon in the Hudson River begins to recover, impingement rates at IP2 andIP3 will increase with the increasing population size.

The NRC staff concludes that operation of IP2 and IP3 is may affect, but is not likely to adversely affect, the Atlantic sturgeon during the remainder of the current operating license period and the 20-year license renewal term (through September 28, 2033 and December 12, 2035, respectively), if license renewal is approved.

6.0 References References that appear with an Agencywide Documents Access and Management System (ADAMS) accession number can be accessed through NRCs web-based ADAMS at the following URL: http://adams.nrc.gov/wba/.

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). Federal Register 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. Federal Register 75(193):61904-61929. October 6, 2010.

6

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. Federal Register 77(24):5880-5912. February 6, 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. Federal Register 77(24):5914-5982. February 6, 2012.

[ASMFC] Atlantic States Marine Fisheries Commission. 2007. Estimation of Atlantic Sturgeon Bycatch in Coastal Atlantic Commercial Fisheries of New England and the Mid-Atlantic. Special Report to the ASMFC Atlantic Sturgeon Management Board. August 2007. Available at

<http://www.asmfc.org/speciesDocuments/sturgeon/bycatchReportAug07.pdf> (accessed 14 February 2012).

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

<http://www.nmfs.noaa.gov/pr/pdfs/statusreviews/atlanticsturgeon2007.pdf> (accessed 14 February 2012).

Barnthouse, L.W., D.G. Heimbuch, M. Mattson, and J.R. Young. 2009. Review of NRCs Impingement and Entrainment Assessment for IP2 and IP3. (Data from Table A-1). March 16, 2009. Enclosure 6 in Entergy Nuclear Northeast (Entergy). 2009. Letter from F. Dacimo, Vice President, Entergy Nuclear Northeast, to U.S. Nuclear Regulatory Commission, Chief, Rulemaking, Directives and Editing Branch. Reference NL-09-036.

Subject:

Comments on NUREG-1437, Draft Supplement 38. March 18, 2009. ADAMS Accession No. ML091040133.

Barnthouse, L., M. Mattson, and J. Young. 2011. Shortnose Sturgeon: A Technical Assessment Pursuant to the Endangered Species Act. Prepared for Entergy Nuclear Operations, Inc.; Entergy Nuclear Indian Point 2, LLC; and Entergy Nuclear Indian Point 3, LLC.

April 2011. ADAMS No. ML11126A202.

Endangered Species Act of 1973. 16 U.S.C. 1531, et seq.

[Entergy] Entergy Nuclear Northeast. 2008. Letter from Robert Walpole, Manager, Licensing, Entergy to USNRC, Document Control Desk.

Subject:

Document Request for Additional Information Regarding Environmental Review for License Renewal Application - Hudson River Fisheries Program Data (Year Class Report). NL-08-049. March 7, 2008. ADAMS No.

ML080770457.

[Entergy] Entergy Nuclear Northeast. 2009. Letter from Fred Dacimo, Vice President, License Renewal, Entergy to USNRC, Document Control Desk.

Subject:

Transmission of Additional Requested Information Regarding Sturgeon Impingement Data, Indian Point Nuclear Generating Unit Nos. 2 & 3, Docket Nos. 50-247 and 50-286, License Nos. DPR-26 and DPR-

64. Enclosure 1 to NL-09-091, Sturgeon Impingement at Indian Point 1974-1990. July 1, 2009.

ADAMS No. ML091950345.

[Entergy] Entergy Nuclear Northeast. 2011a. Letter from Fred Dacimo, Vice President, License Renewal to Andrew Stuyvenberg, NRC Environmental Project Manager, NRC and Patricia Kurkul, Regional Administrator, National Marine Fisheries Service - Northeast Region.

Subject:

Endangered Species Act Consultation, Indian Point Nuclear Generating Unit Nos. 2 & 3, Docket Nos. 50-247 and 50-286, License Nos. DPR-26 and DPR-64. April 28, 2011. ADAMS No.

ML11126A202.

7

[Entergy] Entergy Nuclear Northeast. 2012. Letter from Fred Dacimo, Vice President, License Renewal to David Wrona, Branch Chief, Projects Branch 2, Division of License Renewal, NRC.

Subject:

Endangered Species Act Consultation, Indian Point Nuclear Generating Unit Nos. 2 &

3, Docket Nos. 50-247 and 50-286, License Nos. DPR-26 and DPR-64. NL-12-043. March 7, 2012. ADAMS No. ML1207A116.

Gilbert CR. 1989. Species Profiles: Life Histories and 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://www.nwrc.usgs.gov/wdb/pub/species_profiles/82_11-122.pdf> (accessed 14 February 2012).

[NAI] Normandeau Associates Inc. 2008. NRC Request for Sampling Effort and Abundance Data from Three Hudson River Sampling Programs for 16 Selected Fish Species During 1974 through 2005. February 25, 2008. Bedford, NH. ADAMS No. ML080780288. Data displayed in ADAMS Nos. ML080770458, ML080770459, ML080770463, ML080770464, ML080770465, ML080770466, ML080770467.

[NMFS] National Marine Fisheries Service. 2011a. Endangered Species Act Section 7 Consultation, Biological Opinion. Northeast Regional Office. October 14, 2011. ADAMS No.

ML11290A232.

[NMFS] National Marine Fisheries Service. 2011b. Letter from Patricia Kurkul, Regional Administrator, Northeast Regional Office, NMFS to David Wrona, Branch chief, Projects Branch 2, division of License Renewal, NRC. Re: Biological Opinion for License Renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3. October 14, 2011. ADAMS No. ML11290A232.

[NMFS] National Marine Fisheries Service. 2012. Atlantic Sturgeon (Acipenser oxyrinchus oxyrinchus). Available at <http://www.nmfs.noaa.gov/pr/species/fish/atlanticsturgeon.htm>

(accessed 14 February 2012).

[NRC] U.S. Nuclear Regulatory Commission . 2010a. Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report, Main Report and Comment Responses.

NUREG-1437, Supplement 38, 3 volumes. Washington, DC. ADAMS No. ML103270072.

[NRC] U.S. Nuclear Regulatory Commission. 2010b. Letter from David J. Wrona, Chief, Projects Branch 2, Division of License Renewal, NRC to Mary A. Colligan, Assistant Regional Administrator for Protected Resources, National Marine Fisheries Service.

Subject:

Revised biological assessment for license renewal of the Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3. December 10, 2010. ADAMS No. ML102990043.

[NRC] U.S. Nuclear Regulatory Commission. 2011. Letter from Laurel M. Bauer, Acting Chief, Environmental Review and Guidance Update Branch, Division of License Renewal, NRC to Mary A. Colligan, Assistant Regional Administrator for Protected Resources, National Marine Fisheries Service.

Subject:

Supplement to revised biological assessment for license renewal of the Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3. July 26, 2011. ADAMS No.

ML11203A100.

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

<http://www.nmfs.noaa.gov/pr/pdfs/species/petition_atlanticsturgeon_nrdc.pdf> (accessed 14 February 2012).

8

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_ShortnoseSturgeons_2 006.pdf> (accessed 14 February 2012).

9

Table 1. Impingement of Shortnose and Atlantic Sturgeon at IP2 and IP3 from 1975 through 1990 from IP SEIS Table 4-11 (NRC 2010a, data from Barnthouse et al. 2009 in Entergy 2009).

Shortnose Sturgeon Atlantic Sturgeon Year Grand Total IP2 IP3 Total IP2 IP3 Total (a) 1975 1 NS 1 118 NS 118 119 1976 2 0 2 8 8 16 18 1977 6 1 7 44 153 197 204 1978 2 3 5 16 21 37 42 1979 2 2 4 32 38 70 74 1980 0 1 1 9 10 19 20 1981 0 0 0 3 5 8 8 1982 0 0 0 1 1 2 2 1983 0 0 0 3 0 3 3 1984 1 1 2 3 5 8 10 1985 0 0 0 8 17 25 25 1986 0 0 0 2 4 6 6 1987 2 1 3 2 1 3 6 1988 3 1 4 1 0 1 5 1989 0 1 1 0 0 0 1 1990 1 0 1 0 2 2 3 Total 20 11 31 250 265 515 546 (a)

Not Sampled, unit not in operation 10

Table 2. Total Atlantic Sturgeon Caught during the Hudson River Fall Shoals Survey, 1974-2005, by Region.

The numbers of Young of the Year (YOY) are indicated in parentheses where appropriate (NAI 2008).

Tappan Croton- Indian West Hyde Grand Year Battery Yonkers Cornwall Poughkeepsie Kingston Saugerties Catskill Albany Zee Haverstraw Point Point Park Total 1974 -- 0 3 7 17 24 12 5 -- -- -- -- -- 68 1975 -- 0 2 2 1 1 1 0 -- -- -- -- -- 7 1976 -- 0 3 2 6 0 1 0 -- -- -- -- -- 12 1977 -- 0 3 1 2 0 2 3 -- -- -- -- -- 11 1978 -- 0 1 3 1 1 3 2 -- -- -- -- -- 11 1979 -- 0 3 3 1 1 0 0 1 1 1 0 1 12 1980 -- 0 2 0 1 1 0 0 1 (1) 0 0 0 1 6 (1) 1981 -- 0 0 0 0 1 4 0 1 3 1 2 2 14 1982 -- 0 1 0 0 2 0 0 1 0 0 0 0 4 1983 -- 0 0 0 0 0 0 6 3 0 2 5 12 28 1984 -- 0 0 2 0 2 2 0 1 3 4 0 1 15 1985 -- 0 3 1 2 6 11 10 15 29 11 3 5 96 1986 -- 0 2 7 6 17 19 12 39 52 23 6 1 184 1987 -- 0 1 5 4 15 7 6 26 59 25 (1) 1 0 149 (1) 1988 -- 0 0 1 2 11 8 2 36 35 15 3 4 (1) 117 (1) 1989 -- 0 2 3 0 12 7 6 12 16 4 1 0 63 1990 -- 0 0 1 0 0 1 0 0 0 4 0 0 6 1991 -- 0 0 0 0 3 0 1 1 0 0 1 4 10 1992 -- 0 0 0 2 2 4 0 2 0 0 1 0 11 1993 -- 0 0 0 1 0 2 0 1 2 0 0 1 7 1994 -- 0 0 1 1 3 1 0 1 4 1 3 0 15 1995 -- 0 0 1 1 0 4 1 0 4 4 0 0 15 1996 0 0 0 0 0 2 2 1 0 0 1 0 2 8 1997 0 0 0 0 1 5 3 20 7 (1) 3 0 1 0 40 (1) 1998 0 1 0 1 0 8 16 3 1 0 0 0 0 30 1999 0 0 1 1 3 6 3 4 0 0 0 0 0 18 2000 0 0 0 0 0 3 (1) 1 1 0 0 0 0 0 5 (1) 2001 0 0 0 0 0 2 2 14 (1) 5 0 0 0 0 23 (1) 2002 0 0 0 1 0 14 10 11 (1) 1 0 0 0 0 37 (1) 2003 0 0 1 1 5 11 20 1 0 0 0 0 0 39 2004 0 0 1 1 6 8 3 3 0 0 0 0 0 22 2005 0 0 0 0 2 4 4 2 0 0 0 0 0 12 Grand 0 1 29 45 65 165 (1) 153 114 (2) 155 (2) 211 96 (1) 27 34 (1) 1095 (7)

Total Shading and -- means not sampled.

11

Table 3. Young of the Year (YOY) and Older Atlantic Sturgeon Caught during the Hudson River Long River Survey from 1974 through 2005 by Region. The numbers of young of the year are indicated in parentheses where appropriate (NAI 2008).

Tappan Croton- Indian West Hyde Grand Year Battery Yonkers Cornwall Poughkeepsie Kingston Saugerties Catskill Albany Zee Haverstraw Point Point Park Total 1974 -- 0 10 1 17 6 6 14 7 (1) 2 0 0 0 63 (1) 1975 -- 0 4 3 10 23 0 4 0 1 1 0 0 46 1976 -- 0 3 1 7 9 3 2 (1) 0 0 1 1 0 27 (1) 1977 -- 0 1 1 1 3 1 1 1 0 0 0 0 9 1978 -- 0 1 0 2 4 2 1 (1) 0 0 0 0 0 10 (1) 1979 -- 0 0 2 5 4 4 0 1 0 0 0 1 17 1980 -- 0 1 3 0 1 0 1 0 0 0 0 0 6 1981 -- 0 0 0 0 0 2 0 0 1 0 0 0 3 1982 -- 0 0 0 0 4 1 0 0 0 0 0 0 5 1983 -- 0 0 0 0 9 0 0 0 0 0 0 0 9 1984 -- 0 0 1 0 1 2 3 9 1 0 1 1 19 1985 -- 0 0 0 0 1 0 0 3 2 2 0 0 8 1986 -- 0 0 0 0 1 0 1 1 0 2 0 0 5 1987 -- 0 0 0 2 5 0 2 1 2 0 0 0 12 1988 -- 0 0 0 1 0 0 0 0 1 3 0 0 5 1989 0 0 0 0 0 0 1 1 0 0 0 0 0 2 1990 0 0 0 0 0 0 1 0 0 0 0 1 3 5 1991 0 0 0 0 2 0 0 0 1 1 0 2 2 (1) 8 (1) 1992 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1993 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1994 0 0 0 0 2 1 0 0 0 0 0 0 0 3 1995 0 0 0 0 0 1 0 0 0 0 0 0 0 1 1996 0 0 0 0 0 0 0 1 0 0 0 0 0 1 1997 0 0 0 0 0 0 0 1 0 0 0 0 0 1 1998 0 0 0 0 0 2 0 0 0 0 0 0 0 2 1999 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2001 0 0 0 0 0 0 1 0 0 0 0 0 0 1 2002 0 0 0 0 0 0 2 0 0 0 0 0 0 2 2003 0 0 1 0 0 0 1 0 0 0 0 0 0 2 2004 0 0 0 0 1 1 2 0 0 0 0 0 0 4 2005 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Grand 0 0 21 12 50 76 29 32 (2) 24 (1) 11 9 5 7 (1) 276 (4)

Total Shading and -- means not sampled.

12

Atlantic Sturgeon 4

3 Standardized Value 2

1 0

-1

-2 1970 1975 1980 1985 1990 1995 2000 2005 2010 FSS CPUE Impingement LRS CPUE Figure 1. Standardized annual river-wide catch per unit effort (CPUE) and impingement by year. The dashed blue line and open blue triangle indicate years with no samples from Hyde Park to Albany during the FSS. The vertical line indicates a change in the sampling gear.

25%

20%

Percent of Total 15%

10%

5%

0%

Percent of Total FSS Percent of Total LRS Figure 2. The percent of the total average annual young of the year and older Atlantic sturgeon catch per unit effort (CPUE, number/1000 m3) by region for the FSS and LRS in 1979 through 2005.

13

APPENDIX A ADDITIONAL INFORMATION ON IMPINGEMENT OF ATLANTIC STURGEON AT INDIAN POINT NUCLEAR GENERATING STATION UNIT NOS. 2 AND 3 PROVIDED BY ENTERGY (2009)

A-2 A-3 A-4 A-5 A-6 A-7 A-8 A-9 A-10 A-11 A-12 A-13 A-14 A-15 A-16 A-17 A-18 A-19 A-20

ML12100A082 OFFICE LA:RPB2:DLR PM:RERB:DLR AB:RERB:DLR OGC BC:RERB:DLR NAME IKing DLogan BBalsam STurk JSusco DATE 04/12/12 04/16/12 04/16/12 05/11/12 05/16/12 Letter to P. Kurkul from J. Susco dated May 16, 2012

SUBJECT:

REQUEST TO REINITIATE SECTION 7 CONSULTATION FOR THE INDIAN POINT NUCLEAR GENERATING UNIT NOS. 2 AND 3 DUE TO LISTING OF ATLANTIC STURGEON DISTRIBUTION:

E-MAIL:

PUBLIC RidsNrrDlr Resource RidsNrrDlrRpb1 Resource RidsNrrDlrRpb2 Resource RidsNrrDlrRarb Resource RidsNrrDlrRasb Resource RidsNrrDlrRapb Resource RidsOgcMailCenter Resource RidsNrrPMIndianPoint Resource JSusco DLogan BBalsam KGreen STurk julie.crocker@noaa.gov dgray@entergy.com

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) October 1, 2013 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of Entergys Answer To Riverkeeper, Inc.s Consolidated Motion For Leave To File Amended Contention RK-EC-8A and Amended Contention RK-EC-8A (Endangered Aquatic Species) were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.

Signed (electronically) by Lance A. Escher Lance A. Escher, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5080 Fax: (202) 739-3001 E-mail: lescher@morganlewis.com DB1/ 75506595