NL-13-097, Supplemental Response to Environmental Impact Statement Related to License Renewal Application

Supplemental Response to Environmental Impact Statement Related to License Renewal Application

ML13218B325
Person / Time
Site:	Indian Point
Issue date:	07/01/2013
From:	Dacimo F Entergy Corp, Entergy Nuclear Northeast
To:	Anders F Office of Nuclear Reactor Regulation, State of NY, Dept of State
References
F-2012-1028, NL-13-097
Download: ML13218B325 (98)

Text

Entergy Nuclear Northeast Indian Point Energy Center 450 Broadway. GSB

• m*

P.O. Box 249 E n Buchanan, NY 10511-0249 Tel (914) 254-2055 Fred Dacimo Vice President Operations License Renewal NL-13-097 July 1, 2013 VIA FEDERAL EXPRESS DIRECT SIGNATURE REQUIRED Fred J. Anders, Chief Natural Resources Management Bureau One Commerce Plaza New York State Department of State 99 Washington Avenue Albany, New York 1223 1-0001 Re:

New York State Department of State File # F-2012-1028 Consistency Certification for Entergy Nuclear Indian Point 2 and Entergy Nuclear Indian Point 3 License Renewal Application

Dear Mr. Anders:

This correspondence provides a supplemental response to your letter to me dated January 16, 2013, requesting "copies of the Final Supplemental Environmental Impact Statement (FSEIS) related to license renewal of Indian Point Nuclear Generating Units 2 and 3, Volume 4, which pertains to aquatic impacts (including impacts to endangered species) to coastal resources, as well as any other EIS supplements prepared for this license renewal application." Enclosed please find a copy of NUREG-1437, Supplement 38, Volume 4, dated June 2013. In making this submission, Entergy does not concede that the enclosed document constitutes or contains "necessary data and information," within the meaning of 15 C.F.R. § 930.58.

Thank you for your attention to this matter.

Res submitted, FRD/rw Enclosure

NL-13-097 Page 2 of 2 cc:

Cesar A. Perales, Secretary, New York State Department of State (w/encs, via Federal Express, Direct Signature Required)

New York State Department of State, Office of Coastal, Local Government and Community Sustainability, Attn: Consistency Review Unit (w/encs, via Federal Express, Direct Signature Required)

Lois M. James, Division of License Renewal, Office of Nuclear Reactor Regulation, U.S.

Nuclear Regulatory Commission Sherwin E. Turk, Esq., Office of General Counsel, U.S. Nuclear Regulatory Commission Kelli Dowell, Assistant General Counsel, Environmental, Entergy Martin R. Healy, Esq., Goodwin Procter LLP Christopher Hogan, Project Manager, NYSDEC Central Office, Division of Environmental Permits John Sipos, Assistant Attorney General, State of New York

ENCLOSURE TO NL-13-097 NUREG-1437, Supplement 38, Volume 4, dated June 2013

SUS.NRCNUREG-1437 r-ývU.,,NRCSupplement 38, Vol.4 United States Nuclear Regulatory Commission Protecting People and the Environment Generic Environmental Impact Statement for License Renewal of Nuclear Plants Supplement 38 Regarding Indian Point Nuclear Generating Units Nos. 2 and 3 Final Report Supplemental Report and Comment Responses Office of Nuclear Reactor Regulation

AVAILABILITY OF REFERENCE MATERIALS IN NRC PUBLICATIONS NRC Reference Material As of November 1999, you may electronically access NUREG-series publications and other NRC records at NRC's Public Electronic Reading Room at http://www.nrc.gov/readinq-rm.html.

Publicly released records include, to name a few, NUREG-series publications; Federal Register notices; applicant, licensee, and vendor documents and correspondence; NRC correspondence and internal memoranda; bulletins and information notices; inspection and investigative reports; licensee event reports; and Commission papers and their attachments.

NRC publications in the NUREG series, NRC regulations, and Title 10, "Energy," in the Code of Federal Regulations may also be purchased from one of these two sources.

1. The Superintendent of Documents U.S. Government Printing Office Mail Stop SSOP Washington, DC 20402-0001 Internet: bookstore.gpo.gov Telephone: 202-512-1800 Fax: 202-512-2250

2. The National Technical Information Service Springfield, VA 22161-0002 www.ntis.gov 1-800-553-6847 or, locally, 703-605-6000 A single copy of each NRC draft report for comment is available free, to the extent of supply, upon written request as follows:

Address: U.S. Nuclear Regulatory Commission Office of Administration Publications Branch Washington, DC 20555-0001 E-mail: DISTRIBUTION.RESOURCEaNRC.GOV Facsimile: 301-415-2289 Some publications in the NUREG series that are posted at NRC's Web site address httr)://www. nrc.aov/readina-rm/doc-collections/nureas Non-NRC Reference Material Documents available from public and special technical libraries include all open literature items, such as books, journal articles, transactions, Federal Register notices, Federal and State legislation, and congressional reports.

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The NUREG series comprises (1) technical and administrative reports and books prepared by the staff (NUREG-XXXX) or agency contractors (NUREG/CR-XXXX), (2) proceedings of conferences (NUREG/CP-XXXX), (3) reports resulting from international agreements (NUREG/IA-XXXX), (4) brochures (NUREG/BR-XXXX), and (5) compilations of legal decisions and orders of the Commission and Atomic and Safety Licensing Boards and of Directors' decisions under Section 2.206 of NRC's regulations (NUREG-0750).

DISCLAIMER: This report was prepared as an account of work sponsored by an agency of the U.S.

Government. Neither the U.S. Government nor any agency thereof, nor any employee, makes any warranty, expressed or implied, or assumes any legal liability or responsibility for any third party's use, or the results of such use, of any information, apparatus, product, or process disclosed in this publication, or represents that its use by such third party would not infringe privately owned rights.

U.NRCNUREG-1437

• U SR Supplement 38, Vol. 4 United States Nuclear Regulatory Commission Protecting People and the Environment Generic Environmental Impact Statement for License Renewal of Nuclear Plants Supplement 38 Regarding Indian Point Nuclear Generating Units Nos. 2 and 3 Final Report Supplemental Report and Comment Responses Manuscript Completed: May 2013 Date Published: June 2013 Office of Nuclear Reactor Regulation

ABSTRACT This supplement to the final supplemental environmental impact statement (FSEIS) for the proposed license renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3 incorporates new information that the U.S. Nuclear Regulatory Commission (NRC) staff has obtained since the publication of the FSEIS in December 2010.

This supplement includes corrections to impingement and entrainment data presented in the FSEIS, revised conclusions regarding thermal impacts based on newly available thermal plume studies, and an update of the status of the NRC's consultation under Section 7 of the Endangered Species Act with the National Marine Fisheries Service regarding the shortnose sturgeon (Acipenser brevirostrum) and Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus).

iii

TABLE OF CONTENTS ABSTRACT.................................................................................................................................

iii TABLE OF CONTENTS.......................................................................................................

V LIST OF FIGURES.....................................................................................................................

vii LIST OF TABLES.......................................................................................................................

vii EXECUTIVE

SUMMARY

ix ABBREVIATIONS, ACRONYMS, AND SYMBOLS................................................................

xi

1.0 INTRODUCTION

1 2.0 IMPINGEMENT AND ENTRAINMENT DATA CORRECTIONS.......................................

3 2.1 Corrections to Section 4.1.2, "Entrainment of Fish and Shellfish in Early Lifestages," and Its Related Appendices.......................................................................

3 2.2 Corrections to Section 4.1.3, "Combined Effects of Impingement and Entrainment," and Its Related Appendices....................................................................

7

3.0 ASSESSMENT

OF THERMAL IMPACTS......................................................................

17 4.0 SECTION 7 CONSULATION................................................................................................

23 4.1 Corrections to Section 4.6.1, "Aquatic Special Status Species"................................ 23 4.2 History of Section 7 Consultation for Shortnose Sturgeon..........................................

25 4.3 Summary of the National Marine Fisheries Service's Biological Opinion for S hortnose Sturgeon..................................................................................................

26 4.4 Reinitiation of Consultation Due to NMFS's Listing of Atlantic Sturgeon.................... 27 4.5 Conclusion for Aquatic Special Status Species.........................................................

30

5.0 REFERENCES

31 6.0 LIST OF PREPARERS....................................................................................................

37 APPENDIX A COMMENTS RECEIVED ON THE DRAFT SUPPLEMENT TO THE FSEIS FOR LICENSE RENEWAL OF INDIAN POINT UNITS 2 AND 2............... A-1 A.1 Public Comments and NRC Staff Responses........................................................

A-2 A.2 R e fe re n ce s...........................................................................................................

A -3 5 v

LIST OF FIGURES Figure 4-3. Percentage of entrainment composed of RIS fish and total identified fish relative to the estimated total entrainment at IP2 and IP3 combined (data from Entergy 2007b).............................................................

4 Figure H-5. Percentage of entrainment composed of RIS fish and total identified fish relative to the estimated total entrainment at IP2 and IP3 combined (data from Entergy 2007b).............................................................

5 LIST OF TABLES Table 1-39. Percentage of Each Life Stage Entrained by Season and the Contribution of Major Taxa Represented in the Samples................................

6 Table 1-42 Annual Estimated Number of RIS Entrained at IP2 and IP3 (migieiie thousands of fish)...........................................................................................

.. 7 Table 4-4.

Impingement and Entrainment Impact Summary for Hudson River Y O Y R IS.................................................................................................

..... 9 Table H-16. Weight of Evidence for the Strength-of-Connection Line of Evidence for YOY RIS Based on the Monte Carlo Simulation.......................................

10 Table H-17. Impingement and Entrainment Impact Summary for Hudson River Y O Y R IS......................................................................................................

.. 1 1 Table 1-40. Method for Estimating Taxon-Specific Entrainment Mortality Rate (EMR) Based on River Segment 4 Standing Crop for the Strength of C onnection A nalysis......................................................................................

12 Table 1-41 Estimated Annual Standing Crop of Eggs, Larvae, and Juvenile RIS Within River Segment 4 (mi4lieRs thousands of fish).....................................

12 Table 1-43. Estimate of the River Segment 4 Entrainment Mortality Rate (EMR) and the 95 Percent Confidence Limits for the Riverwide Entrainment C M R (1974-1997)........................................................................................

.. 13 Table 1-46. Parameter Values Used in the Monte Carlo Simulation..................................

14 Table 1-47. Quartiles of the Relative Difference in Cumulative Abundance and Conclusions for the Strength-of-Connection from the Monte Carlo S im u latio n...................................................................................................

.. 15 Table 6-1. List of P reparers...............................................................................................

37 vii

EXECUTIVE

SUMMARY

BACKGROUND By letter dated April 23, 2007, Entergy Nuclear Operations, Inc. (Entergy) submitted an application to the U.S. Nuclear Regulatory Commission (NRC) to issue renewed operating licenses for Indian Point Nuclear Generating Unit Nos. 2 and 3 (IP2 and IP3) for additional 20-year periods.

Under Title 10 of the Code of Federal Regulations (10 CFR) 51.20(b)(2) and the National Environmental Policy Act of 1969, as amended (NEPA), the renewal of a power reactor operating license requires preparation of an environmental impact statement (EIS) or a supplement to an existing EIS. In addition, 10 CFR 51.95(c) states that the NRC shall prepare an EIS, which is a supplement to the Commission's NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants," issued May 1996.

The NRC published its final supplemental environmental impact statement (FSEIS) for IP2 and IP3 in December 2010. After the NRC published the FSEIS, the staff identified new information that necessitated changes to its assessments in the FSEIS. This new information is derived from the following:

" Entergy provided comments on the FSEIS that included new information on the entrainment and impingement field data units of measure.

" Entergy provided comments on the Essential Fish Habitat Assessment that also included new information on the data units of measure.

• Entergy completed and submitted to the New York State Department of Environmental Conservation a new study that characterizes the IP2 and IP3 thermal plume.

To address this new information, the NRC staff has prepared this supplement to the FSEIS in accordance with 10 CFR 51.92(a)(2) and (c), which address preparation of a supplement to a final EIS for proposed actions that have not been taken, under the following conditions:

" There are new and significant circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts, or

" The NRC staff determines, in its opinion, that preparation of a supplement will further the purposes of NEPA.

In addition to supplementing the FSEIS for the reasons stated above, the NRC is also taking this opportunity to document the completion of the consultation process under Section 7 of the Endangered Species Act of 1973, as amended (ESA), with the National Marine Fisheries Service (NMFS) regarding the shortnose sturgeon (Acipenser brevirostrum) and the Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) population in the New York Bight.

PROPOSED ACTION The proposed action remains the same as that stated in the FSEIS (at pages 1-6 and 1-7):

The proposed Federal action is renewal of the operating licenses for IP2 and IP3 (IP1 was shut down in 1974). IP2 and IP3 are located on approximately 239 acres of land on the east bank of the Hudson River at Indian Point, Village of Buchanan, in upper Westchester County, New York, approximately ix

Executive Summary 24 miles north of the New York City boundary line. The facility has two Westinghouse pressurized-water reactors. IP2 is currently licensed to generate 3216 megawatts thermal (MW(t)) (core power) with a design net electrical capacity of 1078 megawatts electric (MW(e)). IP3 is currently licensed to generate 3216 MW(t) (core power) with a design net electrical capacity of about 1080 MW(e). IP2 and IP3 cooling is provided by water from the Hudson River to various heat loads in both the primary and secondary portions of the plants. The current operating license for IP2 expires on September 28, 2013, and the current operating license for IP3 expires on December 12, 2015. By letter dated April 23, 2007, Entergy submitted an application to the NRC (Entergy 2007a) to renew the IP2 and IP3 operating licenses for an additional 20 years.

PURPOSE AND NEED FOR ACTION The purpose and need for action remains the same as stated in the FSEIS (at page 1-7):

Although a licensee must have a renewed license to operate a reactor beyond the term of the existing operating license, the possession of that license is just one of a number of conditions that must be met for the licensee to continue plant operation during the term of the renewed license. Once an operating license is renewed, State regulatory agencies and the owners of the plant will ultimately decide whether the plant will continue to operate based on factors such as the need for power or matters within the State's jurisdiction-including acceptability of water withdrawal, consistency with State water quality standards, and consistency with State coastal zone management plans-or the purview of the owners, such as whether continued operation makes economic sense.

Thus, for license renewal reviews, the NRC has adopted the following definition of purpose and need (GELS Section 1.3):

The purpose and need for the proposed action (renewal of an operating license) is to provide an option that allows for power generation capability beyond the term of a current nuclear power plant operating license to meet future system generating needs, as such needs may be determined by State, utility, and where authorized, Federal (other than NRC) decision makers.

This definition of purpose and need reflects the Commission's recognition that, unless there are findings in the safety review required by the Atomic Energy Act of 1954, as amended, or findings in the NEPA environmental analysis that would lead the NRC to reject a license renewal application, the NRC does not have a role in the energy-planning decisions of State regulators and Utility officials as to whether a particular nuclear power plant should continue to operate. From the perspective of the licensee and the State regulatory authority, the purpose of renewing the operating licenses is to maintain the availability of the nuclear plant to meet system energy requirements beyond the current term of the plant's licenses.

x

Oc OF ADAMS BSS CFR CHGEC CMR DPS EIS EMR Entergy ESA FSEIS FSS ft GElS ABBREVIATIONS, ACRONYMS, AND SYMBOLS degree(s) Celsius degree(s) Fahrenheit Agencywide Documents Access and Management System Beach Seine Survey Code of Federal Regulations Central Hudson Gas and Electric Corporation conditional mortality rate distinct population segment environmental impact statement entrainment mortality rate Entergy Nuclear Operations, Inc.

Endangered Species Act of 1973, as amended final supplemental environmental impact statement Fall Shoals Survey feet NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" impingement mortality rate Indian Point Nuclear Generating Unit Nos. 2 and 3 Indian Point Energy Center incidental take statement Long River Survey meter(s)

National Environmental Policy Act of 1969 National Marine Fisheries Service U.S. Nuclear Regulatory Commission New York Bight New York Codes, Rules, and Regulations New York State Department of Environmental Conservation representative important species supplemental environmental impact statement strength of connection State Pollutant Discharge Elimination System IMR IP2 and IP3 IPEC ITS LRS m

NEPA NMFS NRC NYB NYCRR NYSDEC RIS SEIS SOC SPDES xi

Abreviations, Acronyms, and Symbols WOE weight of evidence YOY young-of-year xii

1.0 INTRODUCTION

The U.S. Nuclear Regulatory Commission (NRC) staff prepared this supplement to the final supplemental environmental impact statement (FSEIS) for Indian Point Nuclear Generating Units 2 and 3 (1P2 and IP3) in accordance with Title 10 of the Code of Federal Regulations (10 CFR) 51.92(a)(2) and (c), which address the preparation of a supplement to an FSEIS for proposed actions that have not been taken, if the following conditions apply:

" There are new and significant circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts, or The NRC staff determines, in its opinion, that preparation of a supplement will further the purposes of NEPA.

The NRC staff prepared this supplement to the FSEIS because it received new data, analyses, and comments from several sources that potentially changed, and in some cases did change, the staff's conclusions in the FSEIS. This supplement contains the text, tables, and figures that changed as the result of this new information.

Three sources provided information that changed the staffs conclusions in the FSEIS.

First, in comments to the NRC dated March 29, 2011, Entergy Nuclear Operations, Inc.

(Entergy) (Entergy 2011 b, AKRF 2011 b) provided new information regarding the entrainment and impingement field data that it had previously provided to the NRC for its aquatic resource impact assessment in Entergy (2007), a December 2007 supplement to its license renewal application. In its letter dated March 29, 2011, Entergy (2011 b) said that these changes would:

... not alter, but rather confirm, NRC's ultimate conclusion in the FSEIS that potential impacts to aquatic species as a result of theoretical entrainment and impingement at IPEC are no more than MODERATE.

Second, comments submitted on behalf of Entergy (Goodwin Proctor 2011, AKRF 2011 a) on the FSEIS and the NRC staff's Essential Fish Habitat Assessment contained related new information. When the NRC staff considered this information, the staff found that the information necessitated some minor changes to the aquatic ecology findings in Sections 4.1.2 through 4.1.3 of the FSEIS and Appendices H and I. Chapter 2 of this supplement provides corrected tables and conclusions resulting from the NRC staffs analysis of the new information.

Where specific changes or corrections to FSEIS information occur, this supplement references the affected FSEIS section, page, and line numbers.

Third, since the publication of the FSEIS, Entergy submitted to the New York State Department of Environmental Conservation (NYSDEC) a triaxial plume study (Swanson et al. 2011 a) as part of its State Pollutant Discharge Elimination System (SPDES) permit renewal application.

Entergy undertook this study in response to the NYSDEC's 2010 Notice of Denial (NYSDEC 2010). Based on this new information, as well as Entergy's response to the NYSDEC staff's comments on the study (Mendelsohn et al. 2011, Swanson et al. 2011 b) and the NYSDEC staffs conclusions regarding its review of the study and response to comments (NYSDEC 2011), the NRC staff has revised its conclusions regarding the impacts of heat shock to aquatic species. Chapter 3 of this supplement presents these revised conclusions.

In addition to supplementing the FSEIS for the reasons stated above, the staff is also taking this opportunity to update the status of consultations under Section 7 of the Endangered Species Act of 1973, as amended (ESA) with the National Marine Fisheries Service (NMFS).

Chapter 4 of this supplement updates the information contained in Section 4.6.1 of the FSEIS to 1

Introduction document the completion of consultation regarding the shortnose sturgeon (Acipenser brevirostrum) and Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) in the New York Bight (NYB), and summarizes the biological opinion and associated incidental take statement (ITS)

(NMFS 2011 e) that NMFS issued in January 2013 as a result of that consultation.

The NRC staff issued a draft supplement to the FSEIS on June 26, 2012, which was made available for public comment for 45 days. Based on comments received,:dtheN NRC staff amended th~e draft supplement to the FSEIS,* as necessary, and ublished this final supp leent to the FSEIS. The comments received, and the NRC staff's responses to those comments, are presented in Appendix A of this supplement.

Where appropriate, bold text indicates specific text corrections or additions to the FSEIS and bold strikeout indicates deletions from the text. Change bars (vertical: lines in the page margin) indicate changes that'were made tothe text of thedraft supplement to the FSEIS, prior to issuing,:this:final supplement..

2

2.0 IMPINGEMENT AND ENTRAINMENT DATA CORRECTIONS 2.1 Corrections to Section 4.1.2, "Entrainment of Fish and Shellfish in Early Lifestages," and Its Related Appendices In a letter to the NRC dated March 29, 2011 (Entergy 2011 b; AKRF 2011 b), Entergy provided new information supplementing the entrainment and impingement field data that it had previously provided to the NRC for its aquatic resource impact assessment. This new information appears in "Technical Review of FSEIS for Indian Point Nuclear Generating Unit Nos. 2 and 3" (AKRF 2011 b). In its technical review, AKRF (2011 b) stated that the units of the entrainment catch densities provided by Entergy are expressed as the number caught per 1,000 cubic meters (m3). Because Entergy did not originally provide the units used in the FSEIS to assess impacts, the NRC staff believed the units to be the number caught per m3 based on historical documents provided by Entergy, comments by Entergy and its consultants on the draft SEIS, and phone conversations among Entergy, Entergy's consultants, and the NRC staff. Thus, the entrainment losses the FSEIS reported for each of the representative important species (RIS) used in the NRC staffs analysis are too large by a factor of 1,000.

In the FSEIS, the NRC staff estimated the number entrained for a given week as the product of the mean density entrained and the combined weekly flow for IP2 and IP3. The error in the entrainment catch density directly affects Figure 4-3 in Section 4.1.2, and the error is repeated in Figure H-5 in Appendix H. In these figures, the total number entrained on the right axis should be in units of numbers x 108 instead of numbers x 10". The corrected Figures 4-3 and H-5 appear below. In addition, these changes affect two portions of text in the FSEIS.

Lines 2 and 3 of page 4-14 in the FSEIS are corrected as follows:

The total number of identified fish entrained has decreased at a rate of 187 billion million fish per year since 1984.

Lines 1-3 of page H-22 in the FSEIS are corrected as follows:

Linear regression (n=6; p<0.01) indicated that the number of identified fish entrained decreased at a rate of 187 billeio million fish per year, a result consistent with the decrease observed in the number of fish impinged.

The change in units of the entrainment catch densities also affects the 75th percentile of the number of each life stage entrained and the annual estimate of the number entrained presented in Tables 1-39 and 1-42 of Appendix I. In Table 1-39, the units should be numbers x 103 instead of numbers x 106. In Table 1-42, the units should be numbers in the thousands instead of numbers in the millions. The corrected tables appear below.

Figure 4-3 on page 4-15 in the FSEIS is corrected as follows:

3

Impingement and Entrainment Corrections 100%

35 90%

' i/

30 80%

4-P-

25 o

60%

60%

20 !

0 I

x 50%

40%

~15

"*i.,

20%

10%

0%

.0 1980 1981 1982 1983 1984 1985 1986 1987 1988 1

0

% RIS Fish

% Total Identified Fish --------- Total Number Entrained Figure 4-3. Percentage of entrainment composed of RIS fish and total identified fish relative to the estimated total entrainment at IP2 and IP3 combined (data from Entergy 2007b) 4

Impingement and Entrainment Data Corrections Figure H-5 on page H-23 in the FSEIS is identical to Figure 4-3 in the FSEIS and is corrected as follows:

100%

35 90%

30 80%

0 70%

2 1

0 o

60%

-0 20 ýg M

50%

C I'15 40%

30%

10 i0

• .20%

"i 10%

0%

0 1980 1981 1982 1983 1984 1985 1986 1987 1988

% RIS Fish

% Total Identified Fish

---

Total Number Entrained Figure H-6. Percentage of entrainment composed of RIS fish and total identified fish relative to the estimated total entrainment at IP2 and IP3 combined (data from Entergy 2007b) 5

Impingement and Entrainment Corrections Table 1-39 on page 1-54 in the FSEIS is corrected as follows:

Table 1-39. Percentage of Each Life Stage Entrained by Season and the Contribution of Major Taxa Represented in the Samples.

Calculations are based on the 75th percentile over years (1981 and 1983-1987) of each season's number of fish entrained. No entrainment sampling occurred in October-December.

Life Stage EGG Rainbow Smelt Bay Anchovy White Perch Alosa species YOLK-SAC LARVA Atlantic Tomcod Herring Family Bay Anchovy Striped Bass Hogchoker POST YOLK-SAC LARVA Atlantic Tomcod Alosa species Bay Anchovy Anchovy Family White Perch Striped Bass Herring Family Season i Jan-Mar 3%

99%

0%

0%

1%

8%

100%

0%

0%

0%

0%

<1%

100%

0%

0%

0%

0%

0%

0%

2%

96%

0%

0%

0%

0%

0%

0%

0%

4%

0%

10%

100%

0%

0%

0%

0%

Season 2 Apr-Jun 20%

2%

92%

4%

2%

89%

0%

91%

2%

5%

0%

52%

<1%

37%

11%

2%

12%

17%

20%

44%

10%

67%

1%

1%

9%

6%

1%

2%

<1%

<1%

77%

<1%

88%

9%

0%

0%

Season 3 Jul-Sep 78%

0%

100%

<1%

0%

3%

0%

<1%

94%

1%

3%

48%

0%

<1%

58%

39%

1%

1%

<1%

54%

10%

2%

50%

17%

3%

5%

4%

2%

0%

3%

13%

0%

2%

83%

10%

4%

618,393x446 10' 75th Percentile over Years 210,801 x-10 103 23,140x-0 103 JUVENILE White Perch Atlantic Tomcod Weakfish Bay Anchovy Rainbow Smelt Striped Bass Anchovy Family Alosa species White Catfish Blueback Herring UNDETERMINED STAGE Atlantic Tomcod Morone species Bay Anchovy Anchovy Family Alosa species 10,989x446 10' 4,469x4eO 10o3 6

Impingement and Entrainment Data Corrections The title of Table 1-42 on page 1-58 of the FSEIS is corrected as follows:

Table 1-42 Annual Estimated Number of RIS Entrained at IP2 and 1P3 (mil4ions-thousands of fish)

The contents of the table remain accurate and, therefore, are not duplicated in this supplement.

2.2 Corrections to Section 4.1.3, "Combined Effects of Impingement and Entrainment," and Its Related Appendices In a letter to the NRC dated March 29, 2011, Entergy (2011 b) provided new information (in AKRF 2011 b) regarding the units associated with the catch density data from the Long River Survey (LRS) and the Fall Shoals Survey (FSS) that Entergy (2007) had previously submitted to the NRC for its aquatic resource impact assessment. In AKRF's (201 1ib) technical review, the units of the catch densities are expressed as the number caught per 1,000 M3. Entergy did not provide the units for these densities when it originally submitted the data to the NRC. The NRC staff based the units it used in the FSEIS to assess impacts (i.e., number caught per M3) on information in the mathematical construction of these measures provided in Central Hudson Gas and Electric Corporation (CHGEC) et al. (1999). Thus, the NRC staff overestimated the annual standing crop from the LRS and FSS in the FSEIS for each of the representative important species (RIS) by a factor of 1,000. The NRC staff then used the estimates of the annual standing crop and the estimated entrainment losses to estimate a conditional entrainment mortality rate (EMR), a parameter in the models used in the strength-of-connection (SOC) analysis.

The NRC staff described the calculation of the standing crop from the LRS and FSS in Appendix I, Section 1.2.2, of the FSEIS. The NRC staff estimated the LRS and FSS weekly standing crop as the weekly density of fish caught multiplied by the IP2 and IP3 region river volume. The error in the density units for the LRS and FSS produced incorrect estimates of the combined standing crop used in the denominator of the estimated EMR in the FSEIS. The NRC staff also used entrainment losses as input to the numerator and the denominator of the EMR estimates. Because both the numerator and the denominator of the estimated EMR were too large by a factor of 1,000, only those estimates for two RIS (spottail shiner (Notropis hudsonius) and white catfish (Ameiurus catus)), in which the Beach Seine Survey (BSS) contributed more of the standing crop, were seriously affected. For the remaining RIS, to which the BSS contributed little, the errors in units largely cancelled because of the construction of the EMR as a ratio of the number entrained (which was 1,000 times too large) to the number at risk (number in the river plus the number entrained, both of which were 1,000 times too large). The amount and direction of change in the EMR depends on the relative contributions from the three sampling programs-BSS, FSS, and LRS.

The NRC staff used the EMR in its assessment of the SOC and, ultimately, to determine the final weight-of-evidence (WOE) assessment of the combined effects of impingement and entrainment from IP2 and IP3. The unit of measure error affects the staffs conclusion of High SOC for spottail shiner, but not the conclusion of Low SOC for white catfish. The NRC staff reran the SOC Monte Carlo simulations using the corrected EMRs, and, based on the corrected data, now finds a Low SOC for the spottail shiner. Further, based on the WOE assessment of the combined effects of impingement and entrainment from IP2 and IP3, the NRC staff concludes that the impacts of impingement and entrainment on the spottail shiner are SMALL rather than LARGE.

The changes to the SOC analysis affect FSEIS Table 4-4 (presented below) and several lines of text in Section 4.1.3.3. However, Section 4.1.3.5 is not affected by these changes.

7

Impingement and Entrainment Corrections Lines 41-43 on page 4-20 of the FSEIS are corrected as follows:

Based on the WOE assessment (Table 4-4), the NRC staff concludes that impacts to American shad, Atlantic menhaden, Atlantic sturgeon, Atlantic tomcod, bay anchovy, bluefish, gizzard shad, shortnose sturgeon, spottail shiner, striped bass, white catfish, and blue crab are SMALL.

Lines 1-3 on page 4-21 of the FSEIS are corrected as follows:

The NRC staff concludes that impacts to alewife, rainbow smelt, and weakfish are MODERATE. The staff concludes that impacts to blueback herring, hogchoker, spetta shiner-and white perch are LARGE.

Lines 30-41 on page 4-21 of the FSEIS are removed as follows:

=l-I I

I L

1' ~

~T'TT EI~

• -----I~fl~I~T i5~ nrp5~r'nr ~nr yiY

~nnyy,~,

-=n...

u r araL r-au pa Es pes n rp u

shincr because a detecstible population decline occurrcd in the riVcr wide (I of 3) and r.wef~ segment (I of 1) data sets, and the stength of connccation with the 1P2 nd 'Pa oln system ihg.Tchabitat for-the Spottail shiner includes small streams, lakes, and ilarg ri rs, luding the Hudson. This specsies feeds primarilYonqutcistlra, aooplanftton, benthic inveirtebr-ates, and fish eggs and larvae, and is tho prey Of striped bass. Spottail shiners spawn from May to June Or July (typ"GaIly Waeir for the northern populationsa) oveir sandy bottoms and St.eam m.uths (Smith 1985ý; Marcy et a. 2005); water chestnut (Trapa.

natans) beds provide imPortant spawning habitat (CHGEC 1999).

Individuals older than 3 years are raro, although some individuals may live 4 or 5 years (Ma~ry et all. 2005). Spoftail shiner is not amaieo anadromou spcis 1o co astal population trend data are not available.

8

Impingement and Entrainment Data Corrections Table 4-4 on page 4-23 of the FSEIS is corrected as follows:

Table 4-4. Impingement and Entrainment Impact Summary for Hudson River YOY RIS impacts of IP2 and IP3 Population Trend Strength of Connection Cooling Systems on Species Line of Evidence Line of Evidence C

S YOY RIS Alewife Variable High Moderate American Shad Detected Decline Low Small Atlantic Menhaden Unresolved(a)

Low(b)

Small Atlantic Sturgeon Unresolved(a)

Low(b)

Small Atlantic Tomcod Detected Decline Low Small Bay Anchovy Undetected Decline High Small Blueback Herring Detected Decline High Large Bluefish Detected Decline Low Small Gizzard Shad Unresolved(a)

Low(b)

Small Hogchoker Detected Decline High Large Rainbow Smelt Variable High Moderate-Large(c)

Shortnose Sturgeon Unresolved(a)

Low(b)

Small Spottail Shiner Detected Decline High Low Large Small Striped Bass Undetected Decline High Small Weakfish Variable High Moderate White Catfish Variable Low Small White Perch Detected Decline High Large Blue Crab Unresolved(a)

Low(b)

Small (a) Population trend could not be established because of a lack of river survey data.

(b) Monte Carlo simulation could not be conducted because of the low rate of entrainment and impingement; a Low Strength of connection was concluded.

(c) Section 4.1.3.3 provides supplemental information.

Because of the new information regarding the units of the data for entrainment density and the density of fish caught during the LRS and FSS, the NRC staff corrected the estimates of EMR for American shad (Alosa sapidissima), bay anchovy (Anchoa mitchilh), hogchoker (Trinectes maculates), white catfish, and white perch (Morone americana) reported in Appendices H and I.

The staffs conclusions of the SOC for these RIS, however, remain unchanged. These changes affect several lines of text in Sections H.1.3.2 and H.1.3.3 and Tables H-16 and H-17, as described below.

Lines 11-12 on page H-47 in Section H.1.3.2 of the FSEIS are corrected as follows:

The results of this analysis indicated a High strength of connection for nie eight species (Table H-16).

Lines 15-16 on page H-47 in Section H.1.3.2 of the FSEIS are corrected as follows:

For feuw five RIS, the strength of connection was Low (minimal evidence of connection).

Lines 6-10 on page H-49 in Section H.1.3.3 of the FSEIS are corrected as follows:

Based on the WOE assessment (Table H-17), the NRC staff concludes that the impact levels are Small for eleven 12 species: American shad, Atlantic menhaden, Atlantic sturgeon, Atlantic tomcod, bay anchovy, bluefish, gizzard shad, shortnose sturgeon, spottail shiner, striped bass, white catfish, and blue crab. Further, the staff concludes that the impacts are Moderate for three species: alewife, rainbow smelt, and weakfish. Finally, the staff concludes that 9

Impingement and Entrainment Corrections the impacts are Large for few three species: blueback herring, hogchoker, spettal,*;Sh*h,.. and white perch.

Lines 26-38 on page H-50 in Section H.1.3.3 of the FSEIS are removed as follows:

Splil ShineF TheV IRC staff n

Oncludl s that a Large i t is present for YOY spottail shinor because a dctccatible population decline occurred in the river-wide (I of 3) and river segment (I of 1) data sets, and there was a high strength ot coennecation with tho l112 and 1P3 csooling system. The hab-itat for the spottail shincr includes SMall Strcams, lakecs, and large rIve incuding the Hudson. This species feeds primafriy on aquti insect larvae-,

aooplankton, bonthic ncterts and fish eggs and larvae, and is the prcy Of striped bass. Spottail shiners spawn from May to June OF jUly (typicsally later-for F the northern populations) over-sandy bottomns andl Streamn mouths (Smith 1985; MarcY et al. 2006); water chestnut (Trapa natans) beds provide important spawning habitat (CHGEC 1999).

Individuals older-than 3 Years are rare, but there is evidence of indiv Ndu~lis living four or five years (Marcy et all. 2005). Coastal population trpnd data Were not available for this sPG"OiS.

Table H-16 on page H-48 of the FSEIS is corrected as follows:

Table H-16. Weight of Evidence for the Strength-of-Connection Line of Evidence for YOY RIS Based on the Monte Carlo Simulation RIS Strength of RIS Strength of Connection Connection Alewife High Hogchoker High American Shad Low Rainbow Smelt High Atlantic Menhaden Cannot be Modeled(a)

Shortnose Sturgeon Cannot be Modeled(a)

Atlantic Sturgeon Cannot be Modeled(a)

Spottail Shiner High Low Atlantic Tomcod Low Striped Bass High Bay Anchovy High Weakfish High Blueback Herring High White Catfish Low Bluefish Low White Perch High Gizzard Shad Cannot be Modeled(a)

Blue Crab Cannot be Modeled(a)

(a) Estimates for model parameters were unavailable or information was lacking. Strength of connection assumed to be Low based on review of impingement and entrainment data.

10

Impingement and Entrainment Data Corrections Table H-17 on page H-49 of the FSEIS is corrected as follows:

Table H-17. Impingement and Entrainment Impact Summary for Hudson River YOY RIS Species Population Trend Line of Evidence Alewife American Shad Atlantic Menhaden Atlantic Sturgeon Atlantic Tomcod Bay Anchovy Blueback Herring Bluefish Gizzard Shad Hogchoker Rainbow Smelt Shortnose Sturgeon Spottail Shiner Striped Bass Weakfish White Catfish White Perch Blue Crab Variable Detected Decline Unresolved(a)

Unresolved(a)

Detected Decline Undetected Decline Detected Decline Detected Decline Unresolved(a)

Detected Decline Variable U nresolved(a)

Detected Decline Undetected Decline Variable Variable Detected Decline Unresolved(a)

Strength of Connection Line of Evidence High Low Low(b)

Low(b)

Low High High Low Low(b)

High High Low(b)

High Low High High Low High Low(b)

Impacts of IP2 and IP3 Cooling Systems on YOY RIS Moderate Small Small Small Small Small Large Small Small Large Moderate-Large(c)

Small Large Small Small Moderate Small Large Small (a) Population Line of Evidence could not be established using WOE; therefore, population Line of Evidence could range from small to large.

(b) Strength of connection could not be established using Monte Carlo simulation; therefore, strength of connection was based on the rate of entrainment and impingement.

(c) Section 4.1.3.3 provides supplemental information.

In addition to Tables 1-39 and 1-42, presented earlier, the new information about the units of measure affects tables in Appendix I. The corrected Table 1-40, Table 1-41, Table 1-43, Table 1-46, and Table 1-47 in Appendix I of the FSEIS appear on the following pages.

11

Impingement and Entrainment Corrections Table 1-40 on page 1-56 of the FSEIS is corrected as follows:

Table 1-40.

Method for Estimating Taxon-Specific Entrainment Mortality Rate (EMR)

Based on River Segment 4 Standing Crop for the Strength of Connection Analysis Property of Method Number Entrained River Segment 4 Standing Crop LRS density (by life stage)

Mean density organisms FSS density of YOY entrained by IP2 and IP3

(# per 1000 Mi)

(# per 1000 M3)

BSS density of YOY Variables

(# per haul)

Input Data Volume of cooling water River Segment 4 volume (M3) withdrawn by IP2 and IP3 River Segment 4 shorezone (1000 m3/min) surface area (M2)

Frequency Per week of sampling Per week of sampling Seasonal (Year Sum of weekly estimates of Sum of weekly standing crop specific) number of organisms entrained estimates by IP2 and IP3 Sum of Season 1, 1986, with Sum of seasonal standing crop Annual each year's totals from Season 2 estimates for River Segment 4 Summary and Season 3 Statistics EMR 75th Percentile Annual Number Entrained 75th Percentile (Annual Number Entrained + Annual Standing Crop)

Units of numerator and denominator of

1. of organisms EMR Years of Data 1981 and 1983-1987 1981 and 1983-1987 Life Stages Eggs, Larvae, and Juveniles Eggs, Larvae, and Juveniles Alewife, blueback herring, and unidentified alosids treated collectively as river herring Taxonomic Substitutions Unidentified anchovy spp. (species, plural) allocated to bay anchovy Unidentified Morone spp. allocated proportionally to striped bass and white perch The title of Table 1-41 on page 1-57 of the FSEIS is corrected as follows:

Table 1-41.

Estimated Annual Standing Crop of Eggs, Larvae, and Juvenile RIS Within River Segment 4 (mitionsthousands of fish)

The contents of the table remain accurate and, therefore, are not duplicated in this supplement.

12

Impingement and Entrainment Data Corrections Table 1-43 on page 1-59 of the FSEIS is corrected as follows:

Table 1-43. Estimate of the River Segment 4 Entrainment Mortality Rate (EMR) and the 95 Percent Confidence Limits for the Riverwide Entrainment CMR (1974-1997)

Riverwide CMR 75th Percentile 75th Percentile for Entrainment Annual Number of Number at at IP2 and IP3 Taxa Enrie ikEMR Entrained 1Risk Lower 95%

Upper 95%

(number x 4 106)

(number x 404 106)

Confidence Confidence I

Limit Limit Alewife and Bleba ng 94.9 1003 0.095 0.00747 0.0324 Blueback Herring American Shad 0.357 8.4-9.26 0

0.016696 0.039 Atlantic Menhaden 0

NA NA Not Modeled Atlantic Sturgeon 0

NA NA Not Modeled Atlantic Tomcod 7.65 210 0.036 0.152 0.234 Bay Anchovy 439 2064 2065 0.213 0.0925 0.140 Bluefish 0.00291 1.13 0.003 Not Modeled Gizzard Shad 0

NA NA Not Modeled Hogchoker 1.87 4-.

4.84 0.385 Not Modeled

________0.385 Rainbow Smelt 7.07 27.4 0.258 Not Modeled Shortnose Sturgeon 0

NA NA Not Modeled Spottail Shiner 0.00295 0,00838 0.0937 0.031 0.0802 0.104 Striped Bass 71.4 676 0.106 0.181 0.276 Weakfish 3.90 7.17 0.544 Not Modeled White Catfish 0.00965 0.0848 0.0388 Not Modeled 1__ _ _ _ _

_ _0.249 White Perch 63.5 840 841 0.056800.108 1_

1 0.075 13

Impingement and Entrainment Corrections Table 1-46 on page 1-61 of the FSEIS is corrected as follows:

Table 1-46. Parameter Values Used in the Monte Carlo Simulation Linear Upper 95%

Error Mean CV of RIS Surveyd Slope Confidencemit Square from Density Data EMR IMR (r) of the Slope Regression (1979-1990)

Alewife BSS

-0.030

-0.014 0.570 1.245 0.095 0.0020 American Shad BSS

-0.069

-0.059 0.350 0.744 0.0005 0.39 Atlantic Tomcod FSS

-0.040

-0.026 0.490 1.035 0.036 0.0300 Bay Anchovy FSS

-0.075

-0.061 0.505 0.598 0.21 0

0.0040 0.212 Blueback Herring BSS

-0.024

-0.009 0.530 1.488 0.095 0.0040 Bluefish BSS

-0.038

-0.022 0.580 0.692 0.003 0.0005 Hogchoker FSS

-0.034

-0.018 0.580 1.679 0.385 0.0005 0.385 Rainbow Smelt FSS 0.012 0.041 0.576 1.452 0.258 0.0005 Spottail Shiner BSS

-0.017

-0.005 0.430 1.293 0.031 0.0070 Striped Bass BSS 0.040 0.052 0.420 0.528 0.106 0.0080 Weakfish FSS

-0.047

-0.031 0.560 1.085 0.544 0.0005 White Catfish FSS 0.007 0.010 0.100 3.520 0.0005 0.249 White Perch BSS

-0.062

-0.045 0.610 0.848 0.0320 0.075 14

Impingement and Entrainment Data Corrections Table 1-47 on page 1-63 of the FSEIS is corrected as follows:

Table 1-47. Quartiles of the Relative Difference in Cumulative Abundance and Conclusions for the Strength-of-Connection from the Monte Carlo Simulation Number No = 1000 No = 1x 108 Strength Taxa of of Years Median Q1 Q3 Median Q1 Q3 Connection Conclusion 20 0.33 0.11 0.59 '

0.32 0.06 0.55 27 0.36 0.15 0.56 :

0.33 0.14 0.53 20 0.07 0.04 044 0."

0.0 020 American 0.08

-0.03 0.20 0.08

-0.03 0.19 Low Shad 0*08 0-46 0*08 0*00 Shd27

-0.01 0-1 00 0.16 0.07 0.15 0.07

-0.01 Atlantic 20 0.14

-0.04 0.32 0.17

-0.01 0.38 Tomcod 27 0.18 0.04 0.32 0.18 0.02 0.33 20 0...4 0.20 0.08 0.31 0.19 0.08 0.31 Bay Anchovy 027 0.10 0.0.8 High 27 O9 0,10 01U 0.18 A

Q-27 0.19 0.28 0.09 0.28 Blueback 20 0.30 0.02 0.60 0.28 0.02 0.60 Herring 27 0.43 0.16 0.67 0.40 0.14 0.64 High Bluefish 20 0.13

-0.04 0.29 0,14

-0.03 0,30 Low 27 0.14 0.02 0.29 0.16 0.01 0.30 20,044 040 4-.r" 044 044 1.1 Hogchoker 20 0.72 0.37 1.06 0.76 0.42 1.09 0."

0.53 1*10 0

0 High 27 0.76 0.50 1.09 0.84 0.56 1.13 Rainbow 20 0.77 0.33 1.25 0.81 0.35 1.34 Smelt 27 0.93 0.52 1.38 1.03 0.63 1.46 High 0-"

0,"3 o08 0J8 043 0.40 20 0.20

-0.07 0.43 0.18

-0.06 0.42 Spottail Shiner 0.6 08 0.62 046 High Low 0.22 0.01 0.42 0.23 0.01 0.46 Striped Bass 20 0.45 0.09 0.76 0.45 0.12 0.78 High Striped Bass 27 0.62 0.27 1.02 0.66 0.31 1.01 High 20 0.62 0.39 0.87 0.66 0.42 0.90 Weakfish 27 0.63 0.43 0.84 0.64 0.43 0.83 High 20 0.6 0-6 0,46

-046 0,66 White Catfish 0.40

-0.20 0.98 0.37

-0.18 1.00 0.39

-0.15 0.91 0.37

-0.19 0.99 20 046 004 0.42 040 0

0-.4 046 White Perch 0.18 0.03 0.35 0.19 0.03 0.34 27 048 O-N0 04-14 0

0.07 0

High 0.19 0.07 0.30 0.17 0.06 0.30 15

3.0 ASSESSMENT

OF THERMAL IMPACTS In the FSEIS, the NRC staff concluded that the potential impacts of the cooling water discharge from IP2 and IP3 on aquatic species could range from SMALL to LARGE because the staff did not have enough information to quantify the extent and magnitude of the IP2 and IP3 thermal plume. Since publication of the FSEIS, the NRC has obtained additional information from Entergy regarding the thermal plume that enables the staff to make a more informed conclusion regarding thermal impacts.

In January 2011, Entergy submitted to the NYSDEC a preliminary report on a triaxial plume study (Swanson et al 2011 a) as part of its SPDES permit renewal application. Entergy undertook this study in response to the NYSDEC's 2010 Notice of Denial (NYSDEC 2010),

which noted that Entergy's previous thermal study (Swanson et al. 2010) did not directly address the period of highest river temperatures, and as such, would require additional confirmatory monitoring to determine whether any modeled results accurately show compliance with thermal standards. The NYSDEC provided Entergy with comments on the new Swanson et al. (2011 a) study in March 2011. Within the same month, Mendelsohn et al. (2011) and Swanson et al. (2011 b) prepared responses to the NYSDEC staffs review of the study. In a letter dated May 16, 2011, NYSDEC (2011) notified NYSDEC Judges M.E. Villa and D.P.

O'Connell that it had finished reviewing the data and information contained in both the study and the response to NYSDEC's comments and that, based on this information and applicable regulations, the NYSDEC staff had determined the following:

... a thermal mixing zone in the Hudson River near Indian Point not to exceed a maximum of seventy-five (75) acres in total size during any time of a given year (6 NYCRR §704.3) will provide reasonable assurance of compliance with water quality standards and criteria for thermal discharges set forth in 6 NYCRR §§704.1 and 704.2, respectively.

Based on Swanson et al.'s (2011 a) triaxial thermal plume study, Mendelsohn et al.'s (2011) and Swanson et al.'s (2011 b) responses to NYSDEC staff comments on the study, and NYSDEC staff s (2011) conclusions regarding the study, the NRC staff has revised its discussion of and conclusions regarding thermal impacts to aquatic species, which appear in Section 4.1.4 of the FSEIS.

Lines 16-26 on page 4-30 in Section 4.1.4.3 of the FSEIS are changed as follows:

Entorg'; has beon engaged in discussion.

ith the,NvErC conc..ning the theFmal impacts of IP2 and 1P3 c*o*ling water systcm operation. As a reSUlt of those discoussions, the NRCC star notes that Entergy Frentuy perfo~rmed a triaxial thermal study of the Hudson River from Scptembe 9 to November 1 of 2009 (Entcrgy 2010). Given the months involved i this study, the study period did not includo days wilth the highest avcragc annual water temperature. Entergy has indicated that it will performn modeling of the river based- -on its field data in order to determigne whether the power plant is in coempliance with conditionso its per-mit; it also indicated that it may conducat additional monitoring i 2010. The NYSDEC, in its r-ecent Notice of Denial of Water Quality Certificsation, indicated that additional ver-ification of any modeled results would be neressary (NYSDEC 2010). Entergy did conduct additional studies in 2010. This issue continues to be subject to NYS-DEC a2uthority and review.

17

Assessment of Thermal Impacts In February 2010, Entergy submitted to NYSDEC a preliminary report (Swanson et al. 2010) on a triaxial thermal study of the Hudson River performed during the period of September 9 to November 1, 2009.

Because the study did not directly address the period of highest river temperatures, the NYSDEC directed Entergy to perform additional confirmatory monitoring to determine whether any modeled results accurately show compliance with thermal standards (NYSDEC 2010). In January 2011, Entergy submitted to the NYSDEC a new triaxial plume study (Swanson et al. 2011a).

In the new study, Swanson et al. (2011a) reported that the extent and shape of the thermal plume varied greatly, primarily in response to tidal currents. For example, the plume (illustrated as a 40F (2.2°C) temperature increase or AT isotherm in Figure 5-6 of Swanson et al. 2011a) generally followed the eastern shore of the Hudson River and extended northward from IP2 and IP3 during flood tide and southward from IP2 and IP3 during ebb tide. Depending on tides, the plume can be reasonably easily identified and can reach a portion of the near-shore bottom or be largely confined to the surface of the river.

Temperature measurements reported by Swanson et al. (2011a) generally show that the warmest water in the thermal plume is close to the surface, and plume temperatures tend to decrease with depth. A cross-river survey conducted in front of IP2 and IP3 captured one such incident during spring tide on July 13, 2010 (Figure 3-28 in Swanson et al. 201 1a). Across most of the river, water temperatures were close to 82°F (28°C), often with warmer temperatures near the surface and cooler temperatures near the bottom. The IP2 and IP3 thermal plume at that point was clearly defined and extended about 1,000 feet (ft)

(300 meters (m)) from shore on a cross-river transect of about 3800 ft (1150 m) (interpreted from the figure). Surface water temperatures in the plume reached about 850F (290C). Maximum river depth along the measured transect is approximately 50 ft (15 m).

A temperature contour plot at a cross-river transect at IP2 and IP3 illustrates a similar condition on July 11, 2010, during slack before flood tide (Figure 1-10 in Swanson et al. 2011b). Here, the thermal plume is evident to about 2,000 ft (600 m) from the eastern shore (the location of the IP2 and IP3 discharge) and extends to a depth of about 35 ft (11 m) along the eastern shore. The river here is more than 4,500 ft (1,400 m) wide. Bottom temperatures above 820F (280C) were confined to about the first 250 ft (76 m) from shore. In that small area, bottom water temperatures might also exceed 860F (30 0C); elsewhere, bottom water temperatures were about 80°F (270C). The NRC staff notes, however, that these limited-area conditions would not last long, as they would change with the tidal cycle.

In response to NYSDEC's review of the IP2 and IP3 thermal studies (Swanson et al. 201 Ia), Mendelsohn et al. (2011) modeled the maximum area and width of the thermal plume (defined by the 40F (2.2°C) AT isotherms) in the Hudson River. Mendelsohn et al. (2011) reported that for four cross-river transects near IP2 and IP3, the maximum cross-river area of the plume would not exceed 12.3 percent of the river cross-18

Assessment of Thermal Impacts section, and the maximum cross-river width of the plume would not exceed 28.6 percent of the river width (Table 3-1 in Mendelsohn et al.

2011).

Swanson et al. (2011a) concluded that IP2 and IP3 are in compliance with NYSDEC water quality standards set forth at 6 NYCRR Part 704.

After line 43 on page 4-31 of Section 4.1.4.4 of the FSEIS, the following text is to be added:

In response to the NYSDEC's 2010 Notice of Denial (NYSDEC 2010),

Entergy submitted a new triaxial plume study (Swanson et al. 2011a) to the NYSDEC in January 2011. NYSDEC provided Entergy with comments on the new study (Swanson et al. 2011a) in March 2011.

Within the same month, Mendelsohn et al. (2011) and Swanson et al.

(2011 b) prepared responses to the NYSDEC staff's review of the study.

In a May 2011 letter (NYSDEC 2011), NYSDEC staff notified NYSDEC Judges M.E. Villa and D.P. O'Connell that NYSDEC staff had finished reviewing the data and information contained in both the study and the response to NYSDEC's comments and that, based on this information and applicable regulations, NYSDEC staff had determined the following:

a thermal mixing zone in the Hudson River near Indian Point not to exceed a maximum of seventy-five (75) acres in total size during any time of a given year (6 NYCRR §704.3) will provide reasonable assurance of compliance with water quality standards and criteria for thermal discharges set forth in 6 NYCRR §704.1 and 704.2, respectively.

Lines 2-26 on page 4-32 in Section 4.1.4.5 of the FSEIS are corrected as follows:

in the abscnce of a completed thermal study proposed by NYSOEC (or an alternative proposed by EntGrgy and accepted by NYSDEC), existing information must be used to determine the appropriate thomlipc level to sensitive life stages of impor-tant aquatic species. Since NYSDEC modeling in the FEIS (NYSO.E 2003a) indicates-that discharges from 1P2 and 1P3 could raise water temnperatures to a leve greater than that permitted by water quality Griteria that are a c~omponent of existing NYSDEC pe~rmits, the staff must conclude ta advorso imnpacts aro possible. Cold water fiSh species such as Atlani tomcoed and rainbow smelt may be partic.U~lay vulnerablet temperatur-e changes caused by thermal discharges. The populationo both species has declined, and rainbo-w smelt mnay have been eXtirpae fromn the Hudson River. The NYSDEC's issuance of a SPDES permit proVides a basis to conclude that the ther-mal impacts of 1P2 and 1P3 disc;harges could meet applicable regulatory temnperature criteria. Th_

NYSDEC's recent pronouncements and its ongoing r exmination of this issue cweate uncrtainty, and this u is urrently bein addressed in NYSDEC adminiStrative proceedings. AcGordnli h absence of specific. studies, and in te asneOf results sufficient to make a determination of a specific level of impact, the NRC staf concludes that thermal *;mpacts from IP2 and iP3 potentially could range from SMALL to LARGE depending on the extent and magnitude of the 19

Assessment of Thermal Impacts thermal plume, the sensitivity of..

iu quatic species and life stages likely to encsounter the thermal plume

.n th Drbability of an encounter occUrring that coudld result in lethal Or sublethal effocts. Ti range of impact levels expresses the uncertainty acruing from the cRCrent lark of studies and data. Either additional therMal studies or modeling and veroifiation of Entengy's 2009 thermal study might generate data to further c

efinc Or modify this m pact level. For the purpoces of this Final SEIS, the NRC sthaff soncudes that the impactr level sould range frm SMALL to LARGE. This oncslusioen is meant e.

satisfy NRC's NEPA obligations and is not intInIcdIto pejudice any deteminatieon the NYSDEC m3ay roach in responsoe ten c

and i nformation submitted to it by E~ntergy.

NRC regulations for license renewal environmental reviews establish the primary role of the U.S. Environmental Protection Agency (EPA) (or States, when applicable) in water quality regulations as they relate to impacts on aquatic species. As such, the assessment of impacts from heat shock is within the purview of the responsible government agency.

In the case of IP2 and IP3, NYSDEC is the responsible agency.

NYSDEC regulations at 6 NYCRR Part 704 establish specific standards that apply to thermal discharges within the State of New York. The standards are set to "assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water" to which heated water is discharged (6 NYCRR 704.1(a)). Section 4.1.4.4 of this FSEIS supplement describes the thermal plume studies (Swanson et al. 2010, 2011a) that Entergy submitted to NYSDEC and NYSDEC's (2011) conclusions regarding these studies. NYSDEC concluded that the results of the thermal plume studies provide reasonable assurance that the IP2 and IP3 discharge is in compliance with NYSDEC's water quality standards and criteria for thermal discharges.

Based on Entergy's thermal plume studies and NYSDEC's conclusions, the NRC staff concludes that the impacts from heat shock to aquatic resources of the lower Hudson River would be SMALL.

This change in the NRC staff s conclusion regarding thermal impacts (heat shock) also affects the Abstract, Executive Summary, Alternatives, and Summary sections of the FSEIS. The NRC staff has revised parts of these sections, as described below.

Line 37 on page iii through line 2 on page iv of the FSEIS Abstract are changed as follows:

Overall effects from entrainment and impingement are likely to be MODERATE, and impacts from heat shock are likely to be SMALL. Impaets from heat chock potentially range from SMALL to-L-ARGEF depending-on the conclusions of thermal studies proposed by the New York State Department of Environmental Conser-vation (NYSDEC).

Lines 33-39 on page xviii of the FSEIS Executive Summary are changed as follows:

The NRC staff concludes that the potential environmental effects for most of these issues are of SMALL significance in the context of the standards set forth in the GElS with three two exceptions-entrainmenty and impingement-and heat shoc*k from the facil"ity's heated dis"harg..

The NRC staff jointly 20

Assessment of Thermal Impacts assessed the impacts of entrainment and impingement to be MODERATE based on NRC's analysis of representative important species. mpa;ts f-em heat shock potentially range from SMALL to LARGE depending on the conlusonsof therm-al situdies nconducted by Entcrgy and submitted to the NYSDEG, Line 43 on page 8-8 through line 3 on page 8-9 of Section 8.1.1.2 are changed as follows:

Because the closed-cycle cooling system discharges a smaller volume of water, and because the water is cooler than in a once-through system, the extent of thermal impacts Which could range fr. m SMUARA

^-to LARGE for the Gurrent once through system, gie un tainty n the facility's the*rmal impa.cts would remain SMALL be4edueed. Thus, thc effects of thermal shoc~k also dccaline.

Lines 35-40 on page 9-4 of Section 9.1 are changed as follows:

The NRC staff concludes that the potential environmental effects for 9 10 of the 12 categorized issues are of SMALL significance in the context of the standards set forth in the GELS. The NRC staff concludes that the combined impacts from impingement and entrainment (each a separate issue) are MODERATE. I.pac.s frm heat shock could range from SMALL to LARGE, based on the large uncaertainties discussed in Chaptcr 4.

Lines 8-13 on page 9-5 of Section 9.1 are changed as follows:

For issues of MODERATE-or-LARGE significance (i.e., issues related to aquatic ecology),

mitigation measures are addressed both in Chapter 4 and in Chapter 8 as alternatives based on determinations in the draft New York State Department of Environmental Conservation (NYSDEC) State Pollutant Discharge Elimination System (SPDES) permit proceeding, Clean Water Act Section 401 proceeding, and in draft policy statements published by the State.

21

4.0 SECTION 7 CONSULTATION At the time the NRC staff published the FSEIS, the NRC and NMFS had not completed Section 7 consultation under the Endangered Species Act of 1973, as amended (ESA) for the shortnose sturgeon (Acipenser brevirostrum). During the course of the Section 7 consultation, the NRC staff obtained more studies and information on the thermal plume (previously discussed in Chapter 3 of this document). As a result, the NRC staff has revised its conclusions regarding thermal impacts to the shortnose sturgeon based on this new thermal modeling information. Section 2.2.5.5 of the FSEIS, which includes the shortnose sturgeon's life history, remains unchanged. The staff identified one correction to Section 4.6.1 of the FSEIS, shown below.

In addition to supplementing the FSEIS for the reasons stated in Chapter 1 of this supplement, the staff is also taking this opportunity to provide an update on the status of its consultation with NMFS related to Indian Point Nuclear Generating Unit Nos. 2 and 3 (IP2 and IP3). This chapter provides an update on the Section 7 consultation history provided in Section 4.6.1 of the FSEIS, as well as a summary of the biological opinion that NMFS issued in October 2011 as a result of consultation. This chapter also provides a summary of the reinitiation of consultation regarding the Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus). Consultation with NMFS regarding the Atlantic sturgeon was reinitiated as a result of NMFS's February 2012 listing of Atlantic sturgeon as an endangered species under the ESA and concluded in January 2013 with NMFS's issuance of a final biological opinion for both the shortnose and Atlantic sturgeon, which included an Incidental Take Statement (ITS).

4.1 Corrections to Section 4.6.1, "Aquatic Special Status Species" In the FSEIS, the NRC staff concluded that the potential impacts of heated discharge from IP2 and IP3 on shortnose sturgeon could not be determined because the staff did not have enough information to quantify the extent and magnitude of the IP2 and IP3 thermal plume. Since publication of the FSEIS, the NRC staff has obtained additional information on the IP2 and IP3 thermal plume. Chapter 3 of this document describes the new thermal plume information.

Based on Swanson et al.'s (2011 a) triaxial thermal plume study, Mendelsohn et al.'s (2011) and Swanson et al.'s (2011 b) responses to NYSDEC staff comments on the study, and NYSDEC staffs (2011) conclusions regarding the study, the NRC staff has revised its discussion regarding thermal impacts to shortnose sturgeon, which appears in Section 4.6.1 of the FSEIS.

Lines 40-43 on page 4-58 in Section 4.6.1 of the FSEIS are changed as follows:

The potential impacsts of thermal dischargcs on shoftnosc and Atlantic sturgeo c~annot determined at this time because additional studecare reqird to quantify; the extent and magnitude of the thermal plume, as discus-pd-in Sec-tiion 4.1.4 of In July 2011, the NRC (2011c) supplemented its analysis of the thermal effects from IP2 and IP3 on the shortnose sturgeon that was presented in NRC's (2010)

December 2010 revised biological assessment. The NRC staff's (2011c) supplement to the revised biological assessment considered newly available thermal plume information (Swanson et al. 2011 a, 2011 b; Mendelsohn et al. 2011; NYSDEC 2011) as well as various studies on shortnose sturgeon biology and thermal preferences (Dadswell 1979; Dadswell et al. 1984; Heidt and Gilbert 1978; Ziegeweid et al. 2008a, 2008b). In its July 2011 supplement, the NRC (2011c) 23

Section 7 Consultation concluded that the proposed license renewal of IP2 and IP3 is not likely to adversely affect the Hudson River population of shortnose sturgeon.

NMFS issued its biological opinion in Octob-* 2011 (NMFS 2011e). In its biologicall opinion, NMFS conclluded that Shortnoco sturgGon are likely to avoid the small arca of water elevated above the speci"es' prcfc~rrd temperature range andtdhat-it is eXtremcly unlikely that th hanges in behavior will plrelude shoArtnse sturgeo-n frolm coampleting any essential behaViorS Such as resting, foragitng Or migrating or-that the fitness of any individuals will be afferatedk Based on the NRC's (2011cG) previous analysis and NMFS's (20110e) biological opinion, the NRC staff concludes that the heated discharge rcsulting from the proposed 1122 and IP3 lic rinewal would haie SM AII I impacts on the shotnose sturgeon.

Lines 13-20 on page 4-59 and Lines 1-16 on page 4-60 in Section 4.6.1 of the FSEIS are modified as follows:

The NRC staff reviewed information from the site audit, Entergy's ER for the 1132 and 1133 site, other reports, and information from NMFS. Based On the WOQE information presented in Table 4 4, The NRC staff concludes that the imnpactS associated with the 1P2 and 1P3 cooling system are Small for both Atlantic. and shortnose sturgeon. The population trend LOE evaluation was UnResolvcd because the Hudson River monitoring programs wore not designed to catch cither species. The NRC staff was also unablet determine the strength Of concinfor either speie usin the Monte Carlo simulato modeling. Because historical imnpingements of sturgcon have been relatively low, especially for shortnosc sturgeon, the NRC staff concluded that the strength Of connection was low. Based 9R the WOEF analysis described above-,-a determination of Moderate or L~arge impact is not supported, and the NRC staf concludes that the impacts of an additional 20 years (beyond the current term) et operation and mnafintenance of the site on aquatic species that are Federally listed as threatened or endangered is SMALL. The NIRC staff is sending a revised biological assessm~ent (B3A) of the im~pactG Of license renewal on the sho-rt-noset-sturgeon to NMFS to review as this SENS goes to press (the BA will be publicly available at ML102990012)-

Should NMFS determine that continue oprto of122 and 1P3 has the potential to adversely impact the shor-tnosc sturgeon, NMF=S will issue a biological opinion. Included inR the biological opinion would be any reasonable and prudent mneasures that the applicant could undertake, as well as the te~rms and conditions for the applicant to comnply with the formal Section 7 consultation. Possible mitigation measures could range from a resum~ption of mon~itoring to determine the number Of Shortnose sturgqeon imrpinged at 1122 and 1P3 to changes in the cooling water intake system, as described inR Secvtion 4.1.5 of this PEIS. Additionally,-as described in Chapter 8, the installation of cooling towers could reduce impingement, entrainment, and therm~al im~pacts for all aquatic resources, including those that are Federally listed.

In addition to the WOE information provided in Table 4-4, the staff examined the new information from the ESA Section 7 consultations with NMFS to determine the level of impact for the purposes of NEPA. Because NMFS (2013) finds that license renewal would not change the status or trend of the Hudson River 24

Section 7 Consultation population of shortnose sturgeon or the species as a whole, the NRC staff finds that the level of impact would be SMALL for this species. For Atlantic sturgeon, NMFS finds that license renewal would not change the status or trend of the Hudson River population of Atlantic sturgeon or the status and trend of the NYB DPS as a whole. NMFS (2013) calculates that the highest observed annual impingement of Atlantic sturgeon at the traveling screens would represent about 0.5 percent of the Hudson River origin juveniles. This potential reduction would not be observable or noticeable through any population study. Therefore, the staff finds that the level of impact would be SMALL for Atlantic sturgeon.

Furthermore, development and implementation of an appropriate monitoring plan for these species at IP2 and IP3 would help ensure protection of these species.

Based on the NRC's (2011C) previous analysis, as corrected herein, and NMFS's (2013) biological opinion, the staff finds that the level of impact for aquatic special status species would be SMALL.

4.2 History of Section 7 Consultation for Shortnose Sturgeon Under Section 7 of the ESA, the NRC staff (2008b) initiated consultation with NMFS in a letter dated December 22, 2008, upon publication of the draft supplemental environmental impact statement (SEIS) and the staffs (NRC 2008a) original biological assessment, which found that the relicensing of IP2 and IP3 could adversely affect the shortnose sturgeon, which had been listed as endangered under the ESA in 1967. In response to that biological assessment, on February 24, 2009, NMFS (2009) requested additional information from the NRC. NMFS stated that it required this information before it could begin formal consultation. On July 1, 2009, the NRC staff obtained the relevant information from Entergy (2009). On August 10, 2009, the NRC (2009) provided that information (including revised impingement data) to NMFS and stated that the data would be addressed in the FSEIS and in a revised biological assessment. The NRC staff published its FSEIS in December 2010 and transmitted its revised biological assessment-to NMFS on December 10, 2010 (NRC 2010b).

On February 16, 2011, NMFS (2011) formally responded to the NRC staffs letter of December 10, 2010, and stated that (1) NMFS currently has all the information it needs to complete a formal consultation, (2) NMFS considers formal consultation to have begun on December 16, 2010, (3) NMFS expects the consultation will conclude within 90 days after it began (i.e., by March 16, 2011) unless extended, and (4) NMFS expects to issue its biological opinion by April 30, 2011. On March 1, 2011, Entergy (201 la) formally notified the NRC staff that it will participate in the consultation process and requested a 45-day extension of the consultation conclusion date in accordance with 50 CFR 402.14(e).

In teleconferences on March 9 and March 11, 2011, NMFS and the NRC staff discussed extending the consultation to allow time for Entergy to submit additional information on the shortnose sturgeon pertinent to the consultation (NRC 2011 h). NMFS formally extended the consultation period in a March 16, 2011, letter (NMFS 2011 a) for a period of 60 days until June 29, 2011, in accordance with 50 CFR 402.14(e). On April 18, 2011, the NRC staff (2011 a) held a Category 1 public meeting during which Entergy presented a data synthesis on the shortnose sturgeon updated with the most recent annual Hudson River monitoring reports. On April 28, 2011, Entergy (2011 c) formally submitted to the NRC the information it had presented during this public meeting.

On June 16, 2011, the NRC staff learned that Entergy had submitted a final, verified triaxial thermal model to NYSDEC concerning aquatic conditions at IP2 and 1P3. The staff also learned that NYSDEC had relied on that model and Entergy's associated information to reach 25

Section 7 Consultation conclusions about thermal conditions at Indian Point for inclusion in a draft SPDES permit (NYSDEC 2011). The NRC staff (201 lb) brought this information to NMFS's attention in an e-mail to NMFS on June 16, 2011.

The NRC staff held three teleconferences with NMFS and Entergy during the weeks of June 20 and June 27, 2011 (NRC 2011 d). On June 20, 2011, the NRC staff and NMFS discussed the NRC's statutory authority to implement terms and conditions or reasonable and prudent measures identified in a biological opinion. On June 22, 2011, the NRC staff, NMFS, and Entergy discussed NMFS's outstanding questions on thermal impacts, impingement, and entrainment of prey species and the design of the IP2 and IP3 cooling system. The NRC staff also requested that Entergy formally submit to the NRC the thermal modeling information that Entergy had given to NYSDEC. By letter dated June 29, 2011, Entergy (2011 d) formally submitted to the NRC various documents related to the thermal studies it had conducted.

During a teleconference on June 29, 2011, the NRC staff, NMFS, and Entergy addressed questions that had arisen during the teleconference on June 22, 2011, and the parties agreed to a revised consultation schedule in which the consultation would end by September 20, 2011, provided that Entergy and the NRC staff would supply NMFS with the information related to NMFS's outstanding questions in a timely manner. The NRC staff (2011 c) supplemented its revised biological assessment on July 26, 2011, as a result of the information that Entergy submitted to the staff on June 29, 2011.

NMFS (2011 b) issued a draft biological opinion on August 26, 2011. In an e-mail dated September 6, 2011, the NRC staff provided NMFS with Entergy's comments on the draft biological opinion (NRC 201 if). In a separate e-mail on the same day, the staff submitted its comments on the draft biological opinion (NRC 201 le). The NRC staff stated that its comments on the draft biological opinion were complete and that it would respond to the procedural issues raised in NMFS's cover letter to the draft biological opinion in a separate letter. On September 19, 2011, NMFS (2011 c) requested more time to complete the final biological opinion. On September 20, 2011, the NRC staff (201 1g) sent its letter addressing the issues NMFS had raised in the cover letter to its draft biological opinion.

NMFS (2011 d, 2011 e) issued its final biological opinion for shortnose sturgeon on October 14, 2011 (referred to as the 2011 biological opinion), which concluded the Section 7 consultation for the IP2 and IP3 license renewal. The NMFS 2011 biological opinion is discussed below.

4.3 Summary of the National Marine Fisheries Service's Biological Opinion for Shortnose Sturgeon I NMFS's 2011 biological opinion (2011 d, 2011 e) included an incideRntal take statnmentlTS for shortnose sturgeon and stipulated a number of reasonable and prudent measures, as well as terms and conditions with which the NRC and Entergy must comply to be exempt from prohibitions of Section 9 of the ESA.

Under the 2011 biological opinion, IP2 and IP3 may take up to the following numbers of shortnose sturgeon during the terms of their renewed operating licenses, which NMFS assumed would not begin before the completion of the initial operating licenses for IP2 and IP3:

6 shortnose sturgeon at Unit 1 104 shortnose sturgeon at Unit 2 58 shortnose sturgeon at Unit 3 26

Section 7 Consultation NMFS included Unit 1, even though it is not in operation, because Unit 2 uses water from the Unit 1 intake as service water.

The 2011 biological opinion stipulated four reasonable and prudent measures that require Entergy to (1) implement an NMFS-approved monitoring program, (2) release all live sturgeon back to the Hudson River, (3) transfer any dead sturgeon to NMFS for necropsy, and (4) report all shortnose sturgeon impingements or sightings to NMFS. The terms and conditions provided the NRC and Entergy with more specific details on how the reasonable and prudent measures must be carried out. The terms and conditions can be found on pages 64-67 of the biological opinion. If the NRC renews the IP2 and/or 1P3 licenses, compliance with the terms and conditions of the biological opinion (as later revised) will be required, as appropriate1.

4.4 Reinitiation of Consultation Due to NMFS's Listing of Atlantic Sturgeon On February 6, 2012, NMFS listed five distinct population segments (DPSs) of the Atlantic sturgeon (Acipenseroxyrinchus oxyrinchus) under the ESA (77 FR 5880; 77 FR 5914). In the Hudson River near Indian Point, Atlantic sturgeon primarily belong to the New York Bight DPS, which NMFS listed as endangered. The NRC staff had previously addressed the environmental impacts of license renewal on the Atlantic sturgeon in the final SEIS and had requested that NMFS conduct a Section 7 conference with the staff regarding the Atlantic sturgeon, which was proposed for listing at that time. On May 16, 2012, in response to the listing, the NRC staff (2012) prepared and submitted a biological assessment to NMFS, along with a request to reinitiate Section 7 consultation for the newly-listed Atlantic sturgeon. The NRC staff expects to continue consultation With NUFS in 2012 regarding Atlantic sturgeon at 1122 and 1123, and will consder he esults of that consultation, as approprfiate.

The NRC provided much of the information needed for this reinitiated consultation in its FSEIS (NRC 2010a) and the revised biological assessment for shortnose sturgeon (NRC 2010b) and its supplement (NRC 2011). Entergy (2011e) 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 facility's effects on the two sturgeon species. Entergy (2012) also provided lists and reviews of reports providing information on the effects of IP2 and IP3 on Atlantic sturgeon.

In its May 16, 2012, biological assessment, the NRC (2012a) concluded 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 license renewal is approved.

NMFS considers reinitiation of consultation to have begun on May 17, 2012, the day after it received the NRC staff's biological assessment. On July 3, 2012, in a telephone call between NMFS and the NRC staff, the NRC staff clarified that its was requesting reinitiated consultation to consider the effects to shortnose sturgeon and the five DPS of Atlantic sturgeon due to operation of IP2 and IP3 during both the remainder of the present license terms and the possible renewed license terms. On July 23, 2012, Entergy supplied additional information on Atlantic and shortnose sturgeon impingement at IP2 and IP3 (AKRF et al. 2012). The NRC staff and NMFS, by mutual agreement, then 1 The 2011 biological opinion stated: "This [incidental take statement] ITS applies to the extended operating period, beginning at the date that the facility begins to operate under the terms of a new license and extending through the expiration date of that license." (NMFS 2011 e) 27

Section 7 Consultation extended the consultation to allow time to review and incorporate the new information in accordance with 50 CFR 402.14(e). NMFS transmitted the draft biological opinion to the NRC for review on October 26, 2012, and the NRC staff then transmitted it to Entergy. On November 9, 2012, the NRC (2012b) transmitted to NMFS both Entergy's and the NRC staff's comments on the draft biological opinion. The NRC staff requested, via a conference call, that the consultation period be extended for 7 days on November 26, 2012. On December 5, 2012, NMFS requested that the consultation be extended to January 9, 2013, to allow time for the NRC and NMFS to discuss language in the ITS. During a conference call on January 8, 2013, the NRC and Entergy provided additional comments related to the ITS, and Entergy submitted additional comments on wording to NMFS on January 9, 2013. On January 9, 2013, the NRC staff and Entergy requested an extension of consultation until January 30, 2013, to afford time for NMFS to consider the comments. NMFS submitted the final biological opinion to the NRC on January 30, 2013 (NMFS 2013), which concluded the formal consultation in accordance with 50 CFR 402.14(1).

After reviewing the proposed action, the status of the species, the environmental baseline, the effects of the action, and the cumulative effects including climate change, the biological opinion (NMFS 2013) concludes 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 [distinct population segments]

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.

The biological opinion (NMFS 2013, page 126) finds that the "Hudson River population of shortnose sturgeon has experienced an increasing trend and is stable at high levels" and that renewal of the operating licenses would "not change the status or trend of the Hudson River population of shortnose sturgeon or the species as a whole" (NMFS 2013, page 119). It also finds that license renewal would "not change the status or trend of the Hudson River population of Atlantic sturgeon or the status and trend of the NYB DPS

[New York Bight Distinct Population Segment] as a whole" (NMFS 2013, page 125).

The 2013 biological opinion includes an ITS that applies to both shortnose and Atlantic sturgeon impinged at IP2 and IP3 for both the remainder of the present license terms and the possible renewed license terms (NMFS 2013, page 127). The ITS (NMPF 2013 pp 130) exempts the following take (injure, kill, capture or collect) as described below:

" A total of two dead or alive shortnose sturgeon (injure, kill, capture or collect) and 2 dead or alive New York Bight DPS Atlantic sturgeon (injure, kill, capture or collect) impinged at the Unit I intake screens from now until the IP2 proposed renewed operating license would expire on September 28, 2033.

" A total of 395 dead or alive shortnose sturgeon (injure, kill, capture or collect) and 269 New York Bight DPS Atlantic sturgeon (injure, kill, capture or collect) impinged at Unit 2 intakes (Ristroph screens) from now until the IP2 proposed renewed operating license would expire on September 28, 2033.

28

Section 7 Consultation A total of 167 dead or alive shortnose sturgeon (injure, kill, capture or collect) and 145 dead or alive New York Bight DPS Atlantic sturgeon (injure, kill, capture or collect) impinged at the Unit 3 intakes (Ristroph screens) from now until the IP3 proposed renewed operating license would expire on December 12, 2035.

All shortnose sturgeon with body widths greater than 3" impinged at the IP1, IP2 and IP3 trash racks (capture or collect).

All Atlantic sturgeon with body widths greater than 3" impinged at the IP1, IP2 and IP3 trash racks (capture or collect). These Atlantic sturgeon will originate from the New York Bight (92), Gulf of Maine (6%

peFr-ent) and Chesapeake Bay DPSs (20/%-pe~er-nt).

NMFS (2013, pages 130-131) would consider the ITS to be exceeded if any one of 16 conditions occurs, each of which specifies the species and population of impinged fish, the number impinged, the generating unit involved, the location of impingement (intake screens or trash racks), and a time period. The ITS states (NMFS 2013, pages 132-133) that Entergy must comply with the following reasonable and prudent measures that NMFS finds necessary or appropriate to minimize and monitor impacts of incidental take of endangered shortnose and Atlantic sturgeon:

(1) A program to monitor the incidental take of shortnose and Atlantic sturgeon at the IP1, IP2 and IP3 intakes must be developed, approved by NMFS, and implemented as described in the Terms and Conditions [of the Biological Opinion]. This program must be implemented throughout the remaining duration of the existing IP2 and IP3 operating licenses as well as during the time IP2 andlor IP3 operate pursuant to the proposed renewed operating license(s).

(2) All live, incidentally taken shortnose and Atlantic sturgeon must be released back into the Hudson River at an appropriate location away from the intakes and thermal plume that does not pose additional risk of take, including death, injury, harassment, collection/capture.

(3) Any dead, incidentally taken shortnose or Atlantic sturgeon must be transferred to NMFS or an appropriately permitted research facility NMFS will identify so that a necropsy can be undertaken to attempt to determine the cause of death.

(4) A genetic sample must be taken of all incidentally taken Atlantic and shortnose sturgeon.

(5) All incidental takes of shortnose and Atlantic sturgeon associated with the Indian Point facilities and any shortnose or Atlantic sturgeon sightings in the action area must be reported to NMFS.

The ITS also contains eight specific, non-discretionary "terms and conditions" that implement the reasonable and prudent measures and outline required reporting and monitoring requirements. Entergy must comply with, and the NRC must ensure through enforceable terms of the existing and renewed licenses of IP2 and IP3 that Entergy does comply with, the terms and conditions of the ITS (NMFS 2013, pages 133-138). NMFS further identifies (NMFS 2013, pages 138-140) seven discretionary conservation recommendations that it recommends the NRC consider, and identifies the conditions for reinitiation of consultations.

29

Section 7 Consultation 4.5 Conclusion for Aquatic Special Status Species In addition to the WOE information provided in Table 4-4, the staff examined the new information from the ESA Section 7 consultations with NMFS to determine the level of impact resulting from license renewal of IP2 and IP3 for the purposes of NEPA. Because NMFS (2013) finds that license renewal would not change the status or trend of the Hudson River population of shortnose sturgeon or the species as a whole, the NRC finds that the level of impact would be SMALL for this species. For Atlantic sturgeon, NMFS finds that license renewal would not change the status or trend of the Hudson River population of Atlantic sturgeon or the status and trend of the NYB DPS as a whole.

NMFS (2013) calculates that the highest observed annual impingement of Atlantic sturgeon at the traveling screens would represent about 0.5 percent of the Hudson River origin juveniles. This potential reduction would not be observable or noticeable through any population study. Therefore, the staff finds that the level of impact would be SMALL for Atlantic sturgeon. Furthermore, development and implementation of an appropriate monitoring plan for these species at IP2 and IP3 would help ensure protection of these species. In addition, license renewal for IP2 and IP3 would be subject to the terms and conditions of the ITS as stated by NMFS. After assessing this new information, the staff finds that the level of impact for aquatic special status species would be SMALL.

30

5.0 REFERENCES

References that appear with an Agencywide Documents Access and Management System (ADAMS) accession number can be accessed through the U.S. Nuclear Regulatory Commision's (NRC's) Web-based ADAMS at the following URL: http://adams.nrc.qov/wba/.

10 CFR Part 51. Code of Federal Regulations, Title 10, Energy, Part 51, "Environmental protection regulations for domestic licensing and related regulatory functions."

50 CFR 402. Code of Federal Regulations, Title 50, Wildlife and Fisheries, Part 402, "Interagency cooperation-Endangered Species Act of 1973, as amended."

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.

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

[AKRF] AKRF, Inc. 201 la. Review of Estimates of Numbers Entrained Presented in NRC 2009 EFH Assessment and 2010 FSEIS. ADAMS Accession No. ML11286A140.

[AKRF] AKRF, Inc. 2011 b. Technical Review of FSEIS for Indian Point Nuclear Generating Unit Nos. 2 and 3; Sections 4.1.1-4.1.3 and Appendices H and I. Prepared for Entergy Nuclear Operations, Inc. Hanover, MD: AKRF, Inc. March 28, 2011. ADAMS Accession No. ML110980163.

AKRF, Inc.; Normandeau Associates, Inc.; ASA Analysis & Communications, Inc.; and LWB Environmental Services, Inc. 2012. Atlantic Sturgeon and Shortnose Sturgeon Impingement at IPEC Units 2 and 3: Review of Historical Data, Projections of Impingement, and Assessment of the Condition of Impinged Sturgeon Upon Arrival at IPEC. July 23, 2012. Prepared for Indian Point Energy Center, Buchanan, NY. ADAMS Accession No. ML12206A028.

Barnthouse, L., Mattson M., and Young J.. 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 Accession No. ML11126A202.

[CHGEC et al.] Central Hudson Gas and Electric Corporation, 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.

December 1999. ADAMS Accession No. ML083400128.

Dadswell, MJ. 1979. Biology and population characteristics of the shortnose sturgeon, Acipenser brevirostrum LeSueur 1818 (Osteichthyes: Acipenseridae), in the Saint John River estuary, New Brunswick, Canada. Canadian Journal of Zoology 57:2186-2210.

Dadswell MJ, Taubert BD, Squiers TS, Marchette D, and Buckley J. 1984. Synopsis of biological data on shortnose sturgeon, Acipenserbrevirostrum LeSueur 1818. NOAA Technical 31

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[Entergy] Entergy Nuclear Operations, Inc. 2007. Letter from F. Dacimo, Vice President of Operations License Renewal, Entergy, to NRC Document Control Desk.

Subject:

Supplement to License Renewal Application-Environmental Report References. December 20, 2007.

ADAMS Accession Nos. ML080080199; Long River Survey: ML11279A044; and Fall Shoals Survey: ML080080291, ML080080298, ML080080306.

[Entergy] Entergy Nuclear Operations, Inc. 2009. Letter from F. Dacimo, Vice President of License Renewal, to Document Control Desk, NRC.

Subject:

Transmission of additional requested information regarding sturgeon impingement data. July 1, 2009. ADAMS Accession No. ML091950345.

[Entergy] Entergy Nuclear Operations, Inc. 2011 a. Letter from F. Dacimo, Vice President of License Renewal, Entergy, to A. Stuyvenberg, Project Manager, NRC.

Subject:

Endangered Species Act consultation for Indian Point Nuclear Generating Unit Nos. 2 and 3. March 1, 2011.

ADAMS Accession No. ML110670270.

[Entergy] Entergy Nuclear Operations, Inc. 2011 b. Letter from F. Dacimo, Vice President of Operations License Renewal, to B. Holian, Division Director, NRC.

Subject:

Comments on final supplemental environmental impact statement for Indian Point Nuclear Generating.

March 29, 2011. ADAMS Accession No. ML110980073.

[Entergy] Entergy Nuclear Operations, Inc. 2011 c. Letter from F. Dacimo, Vice President of License Renewal, Entergy, to A. Stuyvenberg, Project Manager, NRC.

Subject:

Endangered Species Act consultation for Indian Point Nuclear Generating Unit Nos. 2 and 3. April 28, 2011.

ADAMS Accession No. ML11125A071.

[Entergy] Entergy Nuclear Operations, Inc. 2011 d. Letter from F. Dacimo, Vice President of License Renewal, Entergy, to NRC Document Control Desk.

Subject:

License renewal thermal study documents for Indian Point Unit Nos. 2 and 3. June 29, 2011. ADAMS Accession No. ML11189A026.

[Entergy] Entergy Nuclear Northeast. 2011e. 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 Accession No. ML11126A202.

[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 Accession No. ML12074A116.

[Goodwin Proctor] Goodwin Proctor LLP. 2011. Letter from Elise N. Zoli, Goodwin Proctor LLC to David Wrona, Chief, Projects Branch 2, Division of License Renewal, U.S. Nuclear Regulatory Commission.

Subject:

Indian Point License Renewal-Entergy's Comments on NMFS' Essential Fish Habitat Consultation Correspondence. September 30, 2011. ADAMS Accession No. ML11286A140.

Heidt AR, and Gilbert RJ. 1978. The shortnose sturgeon in the Altamaha River drainage, Georgia. In: RR Odum and L Landers, editors. Proceedings of the Rare and Endangered 32

References Wildlife Symposium. Georgia Department of Natural Resources, Game and Fish Division, Technical Bulletin WL-4. pp. 54-60.

Mendelsohn D, Swanson C, and Crowley D. 2011. Part I of Response to the NYSDEC Staff Review of the 2010 Field Program and Modeling Analysis of the Cooling Water Discharge from the Indian Point Energy Center. Prepared for Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Indian Point 3, LLC. South Kingstown, RI: Applied Science Associates, Inc.

March 31, 2011. 13 pp. Available at <http://www.dec.ny.gov/docs/permits!ejoperationspdf/

indnptpartlresp.pdf> (accessed January 11, 2012).

[NMFS] National Marine Fisheries Service. 2009. Letter from M. Colligan, Northeast Assistant Regional Administrator for Protected Resources, NMFS, to D. Wrona, Branch Chief, NRC.

Subject:

Biological assessment for license renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3. February 24, 2009. ADAMS Accession No. ML090820316.

[NMFS] National Marine Fisheries Service. 2011. Letter from P. Kurkul, Northeast Regional Administrator, to D. Wrona, Branch Chief, NRC.

Subject:

Reply to biological assessment for license renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3. February 16, 2011.

ADAMS Accession No. ML110550751.

[NMFS] National Marine Fisheries Service. 2011 a. Letter from P. Kurkul, Northeast Assistant Regional Administrator for Protected Resources, NMFS, to D. Wrona, Branch Chief, NRC.

Subject:

Extension of consultation period-license renewal of the Indian Point Nuclear Generating Plant, Unit Nos 2 and 3. March 16, 2011. ADAMS Accession No. ML110830578.

[NMFS] National Marine Fisheries Service. 2011 b. Letter from P. Kurkul, Northeast Assistant Regional Administrator for Protected Resources, NMFS, to D. Wrona, Branch Chief, NRC.

Subject:

Draft biological opinion for license renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3. August 26, 2011. ADAMS Accession No. ML11249A012.

[NMFS] National Marine Fisheries Service. 2011 c. E-mail from J. Crocker, Fisheries Biologist, to A. Stuyvenberg, Project Manager, NRC.

Subject:

Schedule for biological opinion (revised proposal). September 19, 2011. ADAMS Accession No. ML11300A037.

[NMFS] National Marine Fisheries Service. 201 ld. Letter from P. Kurkul, Northeast Assistant Regional Administrator for Protected Resources, NMFS, to D. Wrona, Branch Chief, NRC.

Subject:

Biological opinion for relicensing of Indian Point Nuclear Generating Unit Nos. 2 and 3.

October 14, 2011. ADAMS Accession No. ML11290A232.

[NMFS] National Marine Fisheries Service. 2011 e. Biological Opinion for Relicensing-Indian Point Nuclear Generating Station F/NER/2009/00619. October 14, 2011. ADAMS Accession No. ML11290A231.

[NMFS] NOAA's National Marine Fisheries Service. 2013. Endangered Species Act Section 7 Consultation Biological Opinion: Continued Operation of the Indian Point Nuclear Generating Station, Units 2 and 3, Pursuant to Existing and Proposed Renewed Operating Licenses, NER-2012-25252. January 30, 2013. ADAMS No. ML13032A256.

[NRC] U.S. Nuclear Regulatory Commission. 2008a. Biological Assessment for License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3. Appendix E to draft NUREG-1437, Supplement 38. 16 pp. ADAMS Accession No. ML083540614.

[NRC] U.S. Nuclear Regulatory Commission. 2008b. Letter from D. Wrona, Branch Chief, NRC, to M. Colligan, Northeast Assistant Regional Administrator for Protected Resources, NMFS.

Subject:

Biological assessment for license renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3. December 22, 2008. ADAMS Accession No. ML083450723.

33

References

[NRC] U.S. Nuclear Regulatory Commission. 2009. E-mail from D. Logan, Aquatic Ecologist, NRC, to J. Crocker, NMFS.

Subject:

Indian Point Section 7-new data from Entergy.

August 10, 2009. ADAMS Accession No. ML092220524.

[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. Washington, DC: NRC. NUREG-1437, Supp. 38.

December 2010. ADAMS Accession No. ML103270072.

[NRC] U.S. Nuclear Regulatory Commission. 2010b. Letter from D. Wrona, Branch Chief, NRC, to M. Colligan, Northeast Assistant Regional Administrator for Protected Resources, NMFS.

Subject:

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

[NRC] U.S. Nuclear Regulatory Commission. 201 la. Summary of public meeting held on April 18, 2011, between NRC and Entergy to discuss Entergy's shortnose sturgeon and Atlantic sturgeon data at Indian Point Nuclear Generating Unit Nos. 2 and 3. April 22, 2011. ADAMS Accession No. ML111090905.

[NRC] U.S. Nuclear Regulatory Commission. 2011 b. E-mail from A. Stuyvenberg, Project Manager, NRC, to J. Crocker, Fisheries Biologist, NMFS.

Subject:

Indian Point thermal information available on New York DEC website. June 16, 2011. ADAMS Accession No. ML11167A108.

[NRC] U.S. Nuclear Regulatory Commission. 2011 c. Letter from L. Bauer, Acting Branch Chief, NRC, to M. Colligan, Northeast Assistant Regional Manager for Project Resources, NMFS.

Subject:

Supplement to revised biological assessment for license renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3. July 26, 2011. ADAMS Accession No. ML11203A100.

[NRC] U.S. Nuclear Regulatory Commission. 2011d. Summary of telephone conference calls held on Jun. 20, 22, and 29, 2011, regarding the ongoing Endangered Species Act consultation for the proposed Indian Point Nuclear Generating Unit Nos. 2 and 3 license renewal.

July 29, 2011. ADAMS Accession No. ML11201A306.

[NRC] U.S. Nuclear Regulatory Commission. 201 le. E-mail from A. Stuyvenberg, Project Manager, NRC, to J. Crocker, Fisheries Biologist, NMFS.

Subject:

NRC staff comments on draft BO for proposed Indian Point license renewal. September 6, 2011. ADAMS Accession No. ML11249A210.

[NRC] U.S. Nuclear Regulatory Commission. 201 1f. E-mail from A. Stuyvenberg, Project Manager, NRC, to J. Crocker, Fisheries Biologist, NMFS.

Subject:

FW: Entergy comments on draft BO. September 6, 2011. ADAMS Accession No. ML11249A145.

[NRC] U.S. Nuclear Regulatory Commission. 201 1g. Letter from D. Wrona, Branch Chief, NRC, to P. Kurkul, Northeast Assistant Regional Administrator for Protected Resources, NMFS.

Subject:

NMFS Letter dated August 26, 2011, regarding the Endangered Species Act, Section 7 consultation for the proposed license renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3. September 20, 2011. ADAMS Accession No. ML11259A018.

[NRC] U.S. Nuclear Regulatory Commission. 201 lh. Summary of telephone conference calls held on March 9 and March 11, 2011, regarding the ongoing Endangered Species Act consultation for the proposed Indian Point Nuclear Generating Unit Nos. 2 and 3 license renewal. April 14, 2011. ADAMS Accession No. ML11089A031.

[NRC] U.S. Nuclear Regulatory Commission. 2012a. Letter from J.J. Susco, Acting Chief, Environmental Review and Guidance Update Branch, Division of License Renewal to Patricia A.

Kurkul, Northeast Regional Administrator, National Marine Fisheries Service.

Subject:

Request 34

References to Reinitiate Section 7 Consultation for the Indian Point Nuclear Generating Unit Nos. 2 and 3 Due to Listing of Atlantic Sturgeon. May 16, 2012. ADAMS Accession No. ML12100A082.

[NRC] U.S. Nuclear Regulatory Commission. 2012b. E-mail from Dennis Logan, Aquatic Biologist, NRC, to Julie Crocker, Fisheries Biologist, NMFS.

Subject:

NRC and Entergy comments on NMFS's draft Indian Point biological opinion. November 9, 2012. ADAMS No. ML12314A415.

[NYSDEC] New York Department of Environmental Conservation. 2010. Letter from W.R.

Adriance, Chief Permit Administrator, NYSDEC to D. Gray, Entergy.

Subject:

Joint Application for CWA §401 Water Quality Certification, NRC License Renewal-Entergy Nuclear Indian Point Units 2 and 3, DEC Nos.: 3-5522-00011/00030 (IP2) and 3-5522-00105/00031 (IP3), Notice of Denial. April 2, 2010. Available at <http://www.dec.ny.gov/docs/permitsejoperationspdf/

ipdenial4210.pdf> (accessed January 11, 2012).

[NYSDEC] New York Department of Environmental Conservation. 2011. Letter from M.D.

Sanza, Assistant Counsel, NYSDEC to Administrative law Judges M. Villa and D.P. O'Connell, NYSDEC Office of Hearings and Mediation Services.

Subject:

Entergy Indian Point Nuclear Units 2 and 3 SPDES Permit Renewal/401 WQC Application Proceedings; DEC Staffs Review of Thermal Information. May 16, 2011. Available at <http://www.dec.ny.gov/docs/

permitsejoperationspdflindnptsanzaltr.pdf> (accessed January 4, 2012).

Swanson C, Kim Y, Mendelsohn D, Crowley D, and Mattson M. 2010. Preliminary Analysis of Hudson River Thermal Data. South Kingstown, RI: Applied Sciences, Inc. and Bedford, NH:

Normandeau Associates, Inc. February 10, 2010. 20 pp. Available at < http://www.dec.ny.gov/

docs/permitsejoperationspdf/elecbdrexhj-k.pdf> (accessed January 11, 2012).

Swanson C, Mendelsohn D, Cohn N, Crowley D, Kim Y, Decker L, and Miller L. 2011a. 2010 Field Program and Modeling Analysis of the Cooling Water Discharge From the Indian Point Energy Center. Prepared for Indian Point Entergy Center, Buchanan, NY. South Kingstown, RI: Applied Science Associates, Inc. January 31, 2011. 132 pp. Available at:

<http://www.dec.ny.gov/docs/permitsejoperations pdf/indnpthrmlrpt.pdf> (accessed January 11, 2012). ADAMS Accession No. ML11189A026.

Swanson C, Crowley D, Kim Y, Cohn N, and Mendelsohn D. 2011b. Part 2 of Response to the NYSDEC Staff Review of the 2010 Field Program and Modeling Analysis of the Cooling Water Discharge from the Indian Point Energy Center. Prepared for Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Indian Point 3, LLC. South Kingstown, RI: Applied Science Associates, Inc. March 31, 2011. 27 pp. Available at <http://www.dec.ny.gov/docs/permitsej_

operationspdf/indnptpart2resp.pdf> (accessed January 11, 2012).

Ziegeweid JR, Jennings CA, and Peterson DL. 2008a. Thermal maxima for juvenile shortnose sturgeon acclimated to different temperatures. Environmental Biology of Fish 3:299-307.

Ziegeweid JR, Jennings CA, Peterson DL, and Black MC. 2008b. Effects of salinity, temperature, and weight on the survival of young-of-year shortnose sturgeon. Transactions of the American Fisheries Society 137:1490-1499.

35

6.0 LIST OF PREPARERS Members of the NRC's Office of Nuclear Reactor Regulation prepared this SEIS with assistance from other NRC organizations, as well as contract support from the Pacific Northwest National Laboratory. Table 6-1 identifies each contributor's name, affiliation, and function or expertise.

Table 6-1. List of Preparers Name Affiliation Function or Expertise NRC Jeremy Susco Nuclear Reactor Regulation Branch Chief David Wrona Nuclear Reactor Regulation Branch Chief Melanie Wong Nuclear Reactor Regulation Branch Chief Michael Wentzel Nuclear Reactor Regulation Project Manager Lois James Nuclear Reactor Regulation Project Manager Kimberly Green Nuclear Reactor Regulation Project Manager Dennis Logan Nuclear Reactor Regulation Ecology Briana Balsam Nuclear Reactor Regulation Ecology Contractor Valerie Cullinan Pacific Northwest National Laboratory Statistics, Ecology Jeffrey Ward Pacific Northwest National Laboratory Ecology 37

APPENDIX A COMMENTS RECEIVED ON THE DRAFT SUPPLEMENT TO THE FSEIS FOR LICENSE RENEWAL OF INDIAN POINT UNITS 2 AND 3

COMMENTS RECEIVED ON THE DRAFT SUPPLEMENT On June 26, 2012, the U.S. Nuclear Regulatory Commission (NRC) staff issued the draft supplement to "Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report" (NUREG-1437, Supplement 38, Volume 4, referred to as the draft supplement to the FSEIS) to Federal, tribal, state, and local government agencies and interested members of the public for comment in accordance with 10 CFR 51.92(f)(1). The U.S. Environmental Protection Agency (EPA) issued its Notice of Availability on July 6, 2012 (77 FR 40036). The public comment period ended on August 20, 2012. As part of the process to solicit public comments on the draft supplement to the FSEIS, the NRC staff did the following:

placed a copy of the draft supplement to the FSEIS at the Field Library in Peekskill, New York, the White Plains Public Library in White Plains, New York, and the Henrick Hudson Free Library in Montrose, New York; made the draft supplement to the FSEIS available in the NRC's Public Document Room in Rockville, Maryland;

" placed a copy of the draft supplement to the FSEIS on the NRC website at http://www.nrc.gov/readinq-rm/doc-collections/nureqs/staff/sr1437/

supplement38/v4/;

provided a copy of the draft supplement to the FSEIS to any member of the public that requested one; sent copies of the draft supplement to the FSEIS to certain Federal, tribal, state, and local government agencies; filed the draft supplement to the FSEIS with the EPA; and published a notice of availability of the draft supplement to the FSEIS in the Federal Register on July 6, 2012 (77 FR 40092).

During the public comment period, the NRC staff received comments from eight individuals or groups. Each comment letter is part of the docket file for the IP2 and IP3 license renewal application, all of which are accessible in the NRC's Agencywide Documents Access Management System (ADAMS). ADAMS is accessible at http://www.nrc.qov/readinq-rm/adams.html. Table A-1 lists each individual that provided a comment during the comment period, and their assigned correspondence identification number. The NRC staff reviewed and assigned each comment within each comment letter a specific comment identification number consisting of the correspondence identification number and a number associated with the sequential order of the comment within the specific document. Table A-2 lists the comments, grouped by category, and where the comment and response can be found within this appendix.

A-1

Appendix A Table A-1. Individuals Providing Comments During the Comment Period Commenter Affilitation (if stated)

Brancato, Deborah Bullard, John Dacimo, Fred Kremer, Arthur McTiernan, Edward Mitchell, Judy-Ann Raddant, Andrew Sipos, John Riverkeeper, Inc.

National Marine Fisheries Service (NMFS)

Entergy Nuclear Operations, Inc.

New York Affordable Reliable Electricty Alliance New York State Department of Environmental Conservation U.S. Environmental Protection Agency (EPA)

U.S. Department of the Interior (DOI)

New York State Office of the Attorney General Comment Source (ADAMS Accession #)

Letter ML12236A207 Letter ML12230A106 Letter ML12244A002 E-Mail ML12234A093 Letter ML12235A149 Letter ML12244A003 Letter ML12235A410 Letter ML12235A409 Correspondence ID 001 002 003 004 005 006 007 008 Comment Category Aquatic Endangered Species General License Renewal Process Postulated Accidents Table A-2. Comments by Category Page Commenter (Comment ID)

A-4 0

Brancato, Deborah (001-1) (001-2) (001-3)

A-7 Dacimo, Fred (003-1)

A-21 0

McTiernan, Edward (005-1)

A-24 0

Mitchell, Judy-Ann (006-1)

A-8 Brancato, Deborah (001-4)

A-16 Bullard, John (002-1)

A-19 0

Kremer, Arthur (004-1)

A-26 0

Raddant, Andrew (007-1)

A-14 0

Brancato, Deborah (001-5)

A-32 0

Sipos, John (008-4)

A-23 0

McTiernan, Edward (005-2)

A-27 0

Sipos, John (008-1) (008-2) (008-3)

A.1 Public Comments and NRC Staff Responses A-2

RIVERKEEPER.

NY%

clean water adnocate August 20, 2012 SUBMITTED ELECTRONICALLY Chief, Rules, Announcements, and Directives Branch Division of Administrative Services Office of Administration Mail Stop: TWB-05-B0IM U.S. Nuclear Regulatory Commission Washington. DC 20555-0001 Re: Docket ID NRC-2008-0672 - Riverkeeper, Inc.'s Comments on the U.S. Nuclear Regulatory Commission's Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Vol. 4, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Docket Nos. 50-247 and.

50-286 (June 2012)

Dear Rules,

Announcements, and Directives Branch Chief:

Riverkeeper, Inc. ("Riverkeeper") hereby respectfully submits the following comments on the U.S. Nuclear Regulatory Commission Staff's ("NRC Stafl") Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Volume 4, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment (hereinafter referred to as "Draft FSEIS Supplement"). Notice of availability of, and opportunity to comment on, the Draft FSEIS Supplement was published on June 26, 2012.'

The NRC Staff initially issued a final supplemental environmental impact statement relating to the proposed license renewal of Indian Point in December 20 103 Based upon purported newly available information, the NRC Staff issued the above-referenced draft supplement to this final

'See Letter from David J. Wrona (NRC) to U.S. Enviroanmental Protection Agency Office of Federal Activities NEPA Compliance Division EIS Filing Section, Re: Notice of Availability of Draft Supplement to Final Plant Specific Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 (June 26,20i2), ADAMS Accession No. ML12159A495 (indicating a comment period cxtending to August 20,2012).

0See Generic Environental Impact Statement for License Renewal ofNuclenr Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 -Fil Report, Main Report and Comment Responses (NUREG-1437, Supplement 38, Volumes 1-3), available at. htm://www.m.a eov/rendin n-rm/doc-collections/noureslstaff7srl437/suanpenent38/ (last visited Aug. 20,2012).

www.rlverkeeper.org ' 20 Secor Road ' Ossining, New York 10562

• 1914.478.4501 f 914.478.4527 N^10 o

CD 9

CT X

report.3 In particular, NRC Staffs Draft FSEIS Supplement includes "corrections to impingement and entrainment data presented in the FSEIS and revised conclusions regarding thermal impacts" in light of new "thermal plume studies"; NRC Staffs draft supplement also provides "an update of the status of the NRC's consultation under section 7 of the Endangered Species Act with the National Marine Fisheries Service [NMFS] regarding shortnose sturgeon..

. and Atlantic sturgeon." 4 NRC Staff's Revied.Analvsis of Imninement and Entrainment Impacis at Indian Point NRC Staff's Draft FSEIS Supplement includes a revised assessment of impingement and entrainment impacts based upon new information obtained from Entergy about impingement and entrainment field data units of measu=.s However, NRC Staff's new analysis does not meaningfully alter the ultimate conclusion that the operation of Indian Point has, and will continue to have, a profousdly negative impact upon the aquatic ecology of the Hudson River.

Riverkeeper's expert biologist consultants at Pisces Conservation Ltd. ("Pisces"), who reviewed and commented upon NRC Staffs initial assessment of impingement and entrainment impacts at Indian Point,6 have now also reviewed NRC Staff's new Draft FSEIS Supplement. Pisces has prepared a response to NRC Staffs new supplement, which is provided in support of the instant comments as Attachment A.' Pisces recognizes that Entergy's presentation of the data with incorrect units caused confusion and errors in the calculation of the number of organisms impinged and entrained at Indian Point.' However, Pisces points out that for most species, "the error in units cancelled themselves out," resulting in no change in NRC Staff's conclusions about the level of impact from impingement sod entraisnment at Indian Point on such species. 9 Pisces indicates that the only species greatly affected by NRC Staff's consideration of Entergy's "corrected" data was spottail shiner. I Pisces explains that even with this change, eight critical fish species continue to have a high strength of connection to the effects of Indian Point, and that Indian Point continues to have a "MODERATE" or "LARGE" impact on several fish species exhibiting this high level of consection." Overall, NRC Staffs revised assessment did not meaningfully change the outcome of NRC Staffs analysis, or NRC Staffs ultimate conclusions about impingement end entrainment impacts caused by Indian Point.

'See Draft FSEIS Supplement at ii. ix, 1-2.

'See Id

'See id at ix, 3-16.

6 See Comment of Phillip Musegaas, Victor M. Taflor, and Deborah Brancato on Behalf of Riverkeeper, Inc. on Generic Envirosmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point, Units 2 & 3 (March 18, 2009). ADAMS Accession No. ML090860983, at 5-9 (hereinafter "Riverkeeper Comments on Indian Point Dec. 2008 DSEIS").

' Pisces Conservatisn, Ltd, "Some notes on the Generic Environmental Impact Statement for License Renewal of Nuclear Plants. Supplement 38" (August 20, 2012) ("Attachment A - Pisces Memo").

' Attachmenl A - Pisces Memo at1-2.

Ild "Id at2.

'I d 001-IA In the FSEIS, the staff addressed the Pisces 2009 comments on the draft SEIS and, in addition, modified its entrainment and impingement analysis methods in the FSEIS in response to new information and comments submitted on the DSEIS.

The staffs new strength-of-connection analysis in the FSEIS did not contain elements about which Pisces had expressed concerns in the original analysis in the draft SEIS. Appendix A of the FSEIS presents the staff's responses, and the body of the FSEIS shows where text was changed. The staff agrees with the commenter that the new information incorporated in the supplement to the FSEIS changed the conclusions for one fish species but did not change the overall conclusion of the FSEIS regarding the effects of entrainment and impingement. The staff made no further changes in response to this comment and considers no further changes to be warranted.

001-IA (D

a-2

01 Importantly, Pisces' original review of NRC Staffs draft assessment of entrainment and impingement at Indian Point revealed various deficiencies and inadequacies in the analysis.' 2 As a result of such deficiencies, Pisces previously explained that the actual impact of Indian Point of various fish species was likely underestimated by NRC Staff.1 NRC Staff's December 2010 FSEIS did not address Pisces' concerns or adequately recognize the devastating level of impact associated with the operation of Indian Point.' 4 Likewise, NRC Staffs Draft FSEIS Supplement contains no analysis that addresses Pisces' original concerns. Nothing in NRC Staff's revised assessment alters the criticisn articulated by Pisces relating to the flawed methodology employed by NRC Staffto determine impingement and entrainment impacts caused by Indian Point. Thus, for the reasons articulated in Pisces' original report concerning NRC Staffs environmental impact statement for the relicensing of Indian Point, NRC Staffs assessment remains fundamentally flawed and continues to misjudge the severity ofimpingement and entrainment at the plant.5 Indeed, the continued operation of Indian Point as proposed by Entergy, i.e., with the ongoing use of a once-through-cooisg water intake structure, will result in significant impacts on an already stressed ecosystem.'

This is simply not reflected in NRC Staffs Draft FSEIS

" See Riverkeeper Comments on Indian Point Dec. 2008 DSEIS, supra Note 6, at 5-9, and Exhibit A (P. A.

Henderson & R. M. H. Seaby (Pisces Conservation Ltd), Comments relating to the Indian Point NRC draft EIS on the Cooling System (Mauch 2009), at 1-9).

'Id

'See Generic Environmental impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Final Report, Main Report and Comment Responses (NUREG-1437, Supplement 38, Volume I, at § 4.1.

" See Riverkeeper Comments on Indian Point Dec. 2008 DSEIS, supra Note 6, at 5.9, and Exhibit A (P. A.

Henderson & K. M. H. Shaby (Pisces Conservation Ltd), Comments relating to the Indian Point NRC draft EIS on the Cooling System (March 2009), at 1-9).

5 See Riverkeeper Comments on Indian Point Dec. 2008 DSEIS, supra Note 6 at 5-9, Exhibit A. The once-through cooling water system employed at Indian Point has a profound impact upon fish in the Hudson River. See generall, Entrainment. Impingement and Thermal impacts at Indian Point Nuclear Power Station, Plsces Conservation Ltd.,

November 2007, available at. ho:/jwwu.rtierktecer.orglwp-contentlunloads12010/03/1397-PH-Hendermon-Artachnrrnr-3-Exanert-Renort-Cont-EC-I.df. at 44; see Id at 4 (CNotably, "[t]he species for which cofraissment mortality has been quantified form only a very small proportion of the total species present in the estuary. As was noted in the FEIS (page 53): 'Finally, although impingement and entrainment mortalit is measuread t Iis tpically measared orly for several of the J40lperlie offlfshesfoUndin the Hudsona Information about the impact on thefidl suite of aquatic organishsr is limited' The impact on other species is as-quantified and may be signifrcan.')

(emphasis in original); NYSDEC Fact Sheet, NY SPDES Draft Permit Renewal with Modification, Indian Point Electric Generating Station (Buchanan, NY - November 200M), at 2, Anacnhmnt B, page 1, rttl//www.dec.nv.anldoeslnern.tis ei oneratioas odllindinPaintFS od ("Each year Indian Point Units 2 and 3..

. caunt the mortality of more than a billion fish from entrainment of various life stages of fishes through the plant and impingement of fishes on intake soreens.... Thus, current losses of various life stages of fshes are substantial."); NYSDEC Hudson River Power Plants FEIS (Jane 25,2003), at 2-3, available at htin:/Jwww.dec.nv.yov/docs/nsermits ei onerations ndffFEISHRPPI.odf. DEC has characterized the destructive impacts associated with the operation of ance-through cooling water intake stractures as "comparable to habitat degradation; the entti natural community is impacted.... [IUmpingement and entrainmeant and warming ofthe water impact the entire community of organisms that inhabit the water column." NYSDEC Hudson River Power Plants FEIS (Jane 25,2003), Public Comment Summary at 53-54, hnnitwww.dec.nv.nov/ddoesinrits ei onerations ndf/FEtSHRPPS.edt (hereinafter "NYSDEC Power Plants MEIS 3

001-lA 001-lB 001-lB 001-1B In the FSEIS, the staff addressed the ongoing use of a once-through cooling water intake structure as part of discussion of the direct and indirect effects of operating the cooling water system (Section 4.1 and Appendices H and I) and the cumulative impacts on aquatic resources (Section 4.8.1 and Appendices H and I). The effects of ecosystem condition are inherently part of the empirical population trend analyses performed in the FSEIS and the supplement because the sampled populations experience the actual ecosystem conditions. Appendix A of the FSEIS presents the staffs responses to comments on the DSEIS, and the body of the FSEIS shows where text was changed. The staff made no further changes to the supplement in response to this comment, as no further changes are warranted.

Supplement - NRC Staff unfailingly refuses to recognize the reality of the situation, and ascribe a realistic and accurate level of impact of entrainment and impingement on the aquatic ecology of the Hudson River. Notably, NRC Staff is content to review Entergy's proposal to operate Indian Point for an additional 20 years in a vacuum - that is, without adequately assessing Entergy's proposal to instal) and implement cylindrical wedgewire screens to purportedly reduce entrainment and impingement impacts, even though doing so will result in additional negative impacts to the aquatic ecology of the Hudson River, such as impacts to the river bottom.

In addition, NRC Staff's Draft FSEIS Supplement fails to address the fact that NRC Staff continues to rely on old data.'

7 That is, all NRC Staff sas done in the Draft FSEIS supplement is correct certain calculation errors with respect to decades-old data that is not necessarily reflective of current conditions, and does not take into account negative chantes to the status of fish populations in the Hudson River that have occurred over the years.

This runs afoul of Cosncil 001-ic 001-2 0)

Comment Summary"). Nearly 40 years of sach degradation resulting from the use of onee-tlhough cooling at Indian Point has resulted in serious long-uerm impacts. Evidence indicates an incoeasingty unstable ecosystem and long-term declines for several signature Hudson River fish species. A Riverkeeeer report retleased in May 2008, revealed that many Hudson River fish are in serious long-term decline. See The Status of Fish Populations and the Ecology of the Hudson, Pisces Conservation ULd., April 2008, vailable at, http:/lwmw.wiverkeeper.orugwn-conlnntuiaIgads-f2O9/66liSmtausof-Fish-in-the-Hudsoýn-Piscesndf(hereinafter "Pisces 2008 Status of Hudson River Fish Report") (analyzing 13 "key" species of tis Hudson River, and faiding that 10 such species are in decline); see also NYSDEC Power Plants FEIS Comment Summary at 57 ("Several species offish in the Hudson River estuary, such as American shad, white perch, Atlantic tomcod snd rainbow smelt, have shown trends of declining abundance.'). As DEC has stated, such "(dleclines in the abondauces of several species and changes in species composition raises concerns and queslions regarding the health of the River's fish community." NYSDEC Power Plants FEIS Commont Summary at 58. With, by fur. the iargest water intake on the Hadoan estary, slaughtering hundreds of millins, and possibly over a billion aquatic organisms every year, the once-through cooling water intake structure at Indian Point has ondoubtedly contributed to such decline, destabilization, and lao of quatic resourees.

See, eg. Pisces 2008 Status of Fish Report at 37-38 ("The impact of tndian Point is the largest of several impacts from once-through cooling on the Hudson. When all the power plants ate considered, the impact is large...

'Tess-to handreds-of-millions of eggs, larvae, andjuvanile fishes of several species are killed per year for once-through users. The cumulative impact of multiple facilities substantially reduces the young-of-year (YOY) population for the entire river.'... in some years these effects have been very large... between 33 - 79%

reductions in Young of Year population.... Even ifthe power companies am not the sole cause of degradation of the Hudson River fiuh community, the loss of such high proportions of the fish populations must be importast" (quoting NYSDEC Water Quality 2006 Report)); see also NYSDEC Power Plants FEIS Comment Summary at 58 (expressly recognizing that "itIhe millions of fish that are killed by power plants each year represent a significant mortality and are yet another stress on the River's fish community" that "must be taken into accomnt when assessing these population declines."); NYS Govemar's Office, Press Release, With American Shad&tocks at Hlatorlcally Low Levels. Governor Paterson Announces New lnitialiver to Rebuild and Protect Hudson River Fisheries (May 28, 2008), available at, htbp:llwww.stsate.ny.usleovermorhreslrass 0528082.hotl (last visited March 24, 2010) (In the coolext of announcing that Hudson River fisheries am in ttroble, recognizing that "[tlhe number offish entering water intake pipes each yearnt the two Indian Point nuclear power plants alone is significant - over 12 billion fish eggs and larvae, including bay anchovy, striped bass, and Atlantic tomeod - with the vast majority dying during the process. Another 1.1 8 million fish per year become trapped against intake screens and likely die."). Entesgy's insistence on relying upon an obsolete cooling technology and refusal to implement a far-superior closed-cycle system, would lead to two additional decades of enormous entraitmeý impingement, and heat impacts an an already precarious ecosystem. This will lead to ongoing habhat degradation, and only fiarther exacerbate the current decline and destabilization of Hudson River fish populations.

"See Riverkeepor Comments on Indian Point Dec. 2008 DSEIlS, spra Note 6, at 9.

'See generally sunra Note 16.

001-IC The New York State Department of Environmental Conservation (NYSDEC), not the NRC, regulates construction and operation cooling water intake structures under the Clean Water Act and both Federal and New York State regulations. At this time, NYSDEC and Entergy have made no decisions regarding installation and implementation of cylindrical wedgewire screens. The FSEIS presents a general discussion of wedgewire or fine-mesh screens in Section 4.1.5, Potential Mitigation Options. At this time, it is speculative whether cylindrical wedgewire screens will be installed and utilized at the facility. If NYSDEC and/or Entergy reach a decision that wedgewire screens will be installed, the NRC staff would consider whether that would require the NRC to reinitiate a Section 7 consultation with NMFS. The staff made no further changes to the supplement in response to this comment.

001-2 The staffs assessment of population trends in the FSEIS and this supplement to the FSEIS uses empirical monitoring study data from 1974 through 2005 (the most recent data then available), and its assessment of thermal impacts in the supplement uses data from a study that Entergy submitted to the NYSDEC in 2011. The staffs analyses based on these empirical studies take into account any changes to the fish populations in the Hudson River that have occurred over the years. The impingement and entrainment data used in the strength of connection analyses date from1975 through 1990 and are the most recent impingement and entrainment data available.

on Environmental Quality ("CEQ") regulations implementing the National Environmental Policy Act ("NEPA"), which require that analyses in environmental impact statements have scientific integrity. 9 For the foregoing reasons, NRC Staff's revised assessment of impingement and entrainment impacts caused by Indian Point remains inadequate.

NRC StafIs RevisedAnalysis of Thermal Discharge Impacts at Indian Poini NRC Staffs Draft FSEIS Supplement assesses "additional information from Entergy regarding the thermal plume" at Indian Point, and based upon that assessment, NRC Staff makes an allegedly "more informed conclusion regarding thermal impacts" of the plant.20 In particular, NRC Staff reviewed a triaxial plume study that Entergy submitted to the New York State Department of Environmental Conservation ("DEC") as part of its State Pollutant Discharge Elimination System ("SPDES") permit renewal proceeding and Clean Water Act § 401 water quality certification denial appeal proceeding, correspondence between DEC and Entergy relating to this thermal study, and a DEC proposed determination that a 75-acre thermal mixing zone will provide reasonable assurance that the operation of Indian Point will comply with applicable regulations.21 Whereas in NRC Staffs initial (December 2010) FSEIS, NRC Staff concluded that thermal impacts at Indian Point ranged from SMALL to LARGE, based on NRC Staff's review of the aforementioned new information, the Draft FSEIS Supplement indicates that now "NRC staff concludes that the impacts from heat shock to aquatic resources of the lower Hudson River would be SMALL."2 However, NRC Staff's changed conclusion is unjustified because Entergy's thermal study and DEC's proposed determination regarding the efficacy of a mixing zone, are highly disputed, namely by Riverkceeper, and currently the subject of ongoing adjudication. Indeed, Pisces' review of the thermal study after it was completed, resulted in detailed comments that outlined numerous concerns related to thermal impacts on aquatic ecology at Indian Point, and problems with Entergy's thermal study. These comments are included as Appendix 1 to Attachment A bereto.23 Pisces' comments reveal that despite Entergy's thermal study and DEC's proposed mixing zone, thermal discharges from Indian Point will continue to pose a threat to the aquatic ecology of the river.34 Moreover, Riverkeeper has vehemently opposed DEC'sproposal to allow Entergy to operate with a mixing zone, raising numerous well-founded concerns about the legality and environmental efficacy of doing so. A copy of Riverkeeper's comments on DEC's "See 40 C.F.L § 1502.24; see also id § 1502.22.

Draft FSEIS Supplement at 17.

211,1 0 Id at 20.

Attachmtent A - Pisces Memo, at Appendix I - Pisces Conservation Ltd, "Cosmmnts on the proposed Indian Point thermal mixing zone" (July 15, 2011).

ASee id at pages 16of22 to20 of 22.

00 1-2 001-3 001-2 (cont) The staff has no reason to believe that the conditional impingement and entrainment mortality rate estimates based on those data would be different today, and the commenter presents no information to suggest that such rates have changed. The staff made no further changes to the supplement in response to this comment.

001-3 The NRC staff recognizes that the effects of the thermal discharge from IP2 and IP3 are the subject of an ongoing hearing in which new information and views are being assessed. At this time, the triaxial plume studies cited in the comment provide the best technical information available to the staff to assess possible thermal effects to aquatic resources. Those studies support the staff's conclusion. The staff did not change its conclusion about the level of impact as a result of this comment, although it recognizes that information that may become available in the future could lead to a different understanding at a later time. In addition, 10 CFR 51.92(a)(2) and (c) address preparation of a supplement to a final environmental impact statement for proposed actions that have not been taken, under the following conditions:

" There are new and significant circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts, or The NRC staff determines, in its opinion, that preparation of a supplement will further the purposes of NEPA.

proposed mixing zone at Indian Point is included with these comments as Attachment B.25 This issue is currently the subject of ongoing adjudication in State proceedings before DEC. Thus, NRC Staff cannot simply indicate that "NYSDEC concluded that the results of the thermal plume studies provide reasonable assurance that the IP2 and EP3 discharge is in compliance with NYSDEC's water quality standards and criteria for thermal discharges," and thereby conclude that impacts of heat shock at Indian Point are SMALL.26 Riverkeeper has raised valid concerns (that have yet to be filly resolved), which call into question Entergy's thermal study and DEC's proposed conclusions with respect to thermal impacts, and, in turn, NRC Staffls revised conclusions in the Draft FSEIS supplement.

For the foregoing reasons, NRC Staff's revised assessment of thermal impacts caused by Indian Point remains inadequate.

NRC Staff's " Uptde "' on Endangered Species Act f 7 Consultations NRC Staff's Draft FSEIS Supplement lastly discusses endangered species impacts at Indian Point.27 First, NRC Staff discusses endangered shortnose sturgeon, In particular, NRC Staff revises its assessment of Indian Point's thermal impact on endangered shortnose sturgeon.

28 NRC Staff's revised conclusion "that the heated discharge resulting from the proposed IP2 and IP3 license renewal would have SMALL impacts on the shortnose sturson," is largely based on NRC Staff's consideration ofEntergy's thermal study discussed above.

Riverkeeper respectfully submits that, due to the reasons discussed above regarding the potential ongoing thermal impacts from Indian Point, NRC Staff's conclusions are not entirely well-founded.3 Moreover, Pisces specifically notes in relation to NRC Staffs Draft FSEIS Supplement that the NRC Staff's finding that there is a "SMALL" level of impact on endangered shortoose sturgeon at Indian Point requires verification.

31 i Lener from Mark Lucas (Riverkeeper) to Christopher M. Hogan (DEC), Re: Entergy Nuclear Indian Point 2, LLC

& Enterg, Nuclear Indian Point 3, LLC Proposed Modification of Special Condition 7b ofSPDESPermit, DEC No. 3-5522- 00011/00004, SPDES No. NY-000472 (July 15, 2011) (Attachment B).

Draft FSEIS Supplsanrtt at 20.

Id at 23-26.

Id at 23-24.

SId See Attachment A - Pisces Memo, at Appendix I - Pisces Conservation Ltd, "Comments on the proposed Indian Point thermal mixing zone" (July 15, 2011); Attachmest B - Letter from Mark Lucas (Rlverkeeper) to Christopher M. Hogan (DEC), Re: Entergy, Nuclear indian Point 2 LLC & Encergy Nudear Indian Point 3. LLC Proposed Modification of Special Condition 7.b of SPDES Permit, DEC No. 3-5522- 0001 t/0004, SPDES No. NY-000472 (July 15,2011).

" See id Moreover, it remains unclear whether, generally, the impact of Indian Point on shorrase saurgcn is "small." See Riverkeeper Cotiments on Indian Point Dec. 2008 DSEIS, at Appendix A (Pisces indicating that there is no reascn to believe that an increasing populasion of shorhose sturgeon would lead to decrease in impingement and that with relatively rare fish, even a small number of impingemaent can have a big effect, and calling into question the ability of the NRC Staff to draw accurate conclusions based on obsolete data).

00

-3 001 -4A 001 -4A The staff addressed this comment in Section 4.0 of this supplement to the FSEIS, which has been revised to reflect the completion of consultations with NMFS on endangered species (including both shortnose sturgeon and Atlantic sturgeon), NMFS's biological opinion, and its issuance of an Incidental Take Statement for Indian Point Units 2 and 3.

Co NRC Staffs Draft FSEIS Supplement further memorializes the outcome of NRC Staffs Endangered Species Act ("ESA") section 7 consultations with NMFS concerning the impact of Indian Point on endangered shornose sturgeon. Based on NRC Staff's mere summary ofthe sequence and outcome of the consultation process, NRC Staff has failed to comply with relevant regulations and guidance, which require meaningful consideration of the opinions and conclusions drawn by NMFS.32 Indeed, NRC Staff does not indicate how NMFS' final biological opinion regarding endangered shorinese sturgeon affects it's NEPA-based analysis and conclusions regarding impacts to endangered resources. Instead, NRC Stafis discussion of the section 7 consultation process in the Draft FSEIS Supplement appears to be a purely opportunistic discussion, provided only because NRC Staff was issuing a draft supplement to address other issues anyway. This is further exemplified by NRC's treatment (i.e., acceptance) of the incomplete section 7 consultation process with respect to the newly endangered Atlantic sturgeon, as discussed forthwith. As discussed below, more is required by controlling law and guidance.

In relation to Atlantic sturgeon, in light of the designation of this species as endangered on February 6,2012, i.e., after the issuance of NRC Staff's December 2010 FSEIS, NRC Staff reinitiated section 7 consultation with NMFS.33 However, NRC Staff simply indicates in the Draft FSEIS Supplement that it expects to carry on consultation procedures and "consider the results of that consultation, as appropriate."3' This fails to assure compliance with NEPA, which requires full consideration of the consultation process and the opinions, conclusions, and recommendations ofNMFS, aspart of the NEPA assessment process. NRC Staffimust include or consider NMFS' assessment, and issue a supplemental EIS to fully consider the outcome of the new section 7 consultation process. This must be accomplished prior to the fmalization of the NEPA process concerning the proposed license renewal of Indian Point, and prior to any ultimate decision by the NRC regarding whether to relicense Indian Point.

In particular, the ESA provides that

[e]ach Federal agency shall, in consultation with.., the Secretary

[of the Interior or Commerce as appropriate], insure that any action authorized, funded, or carried out by such agency... is not likely to jeopardize the continued existence of any endangered species or "See Endangered Species Consultation Handbook, Proced*resfor Conduariwg Connsulfaion ad Conference Activities Under Section 7 of the EndangeredSpecies Act U.S. Fish &Witdlife Service, National Marine Fisheries Service (March 1998), at 4-11, available at hmnr/w/w.nmfs.onaa.evlor/ndfsr/aws/esa section7 handbook.pdf (hereinafter "NMFS Consultation Handbook"); 50 C.F.R. J 402.06(b); Interagency Cooperation - Endangered Species Act of 1973, as Amended, Final Rule, 51 Fed. Reg. 19,926 (1986); SO C.F.R. § 402.15; FSA § 7(d), 16 U.S.C. § 1536(d).

See Draft FSEIS Supplement at 26.

'See id As of the date of these comments, the consuttation process between NRC Staff and NMFS remains ongoing. See Correspondence from Amy Mull (NRC) to Mr. Daniel S. Morris (NMFS), Re: Response to Request for Additional Review Time for Endangered Species Act Section 7 Consultation at Indian Point Nuclear Generating Unit Non. 2 and 3 (Aug. 17, 2012), ADAMS Accession No. ML12221A033 (approving a 60-day extansion of the consultation process whereby NMFS agreed to provide NRC a draft biological opinion on October 22, 2012 for a two-week review and indicating that consultation will be completed by November 28, 2012).

001 -4A 001 -4B 001-4B The staff addressed this comment in Section 4.0 of this supplement to the FSEIS, which has been revised to reflect the completion of consultations with NMFS on endangered species (including both shortnose sturgeon and Atlantic sturgeon), NMFS's biological opinion, and its issuance of an Incidental Take Statement for Indian Point Units 2 and 3.

Comment response on preceding page(s).

threatened species or result in the destruction or sdverse modification of habitat of such species which is determined.., to be critical."'

During formal consultation, NMFS must review all relevant information, evaluate the current status of the relevant listed species, evaluate the effects of the proposed action and cumulative effects on the listed species, formulate an opinion regarding whether the proposed action is likely to jeopardize the continued existence of the listed species, formulate discretionary conservation recommendations that would reduce or eliminate the impacts of the proposed action on listed species, formulate a statement concerning any incidental take of the listed species, 36 and formulate an opinion regarding any reasonable and prudent alternatives to the proposed project and reasonable and prudent measures that could be taken.3" Formal consultation concludes when NMFS issues a "biological opinion" ("BO")." Once NMFS issues its BO, "the Federal agency shall determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service's biological opinion."39 In addition, NRC's NEPA-implementing regulations designate the impacts of license renewal on threatened or endangered species as a "Category 2" issue, i.e. one that requires site specific review during individual relicensing proceedings.45 NRC's regulations acknowledge that

'consultation with appropriate agencies would be needed at the time of license renewal to

>determine whether threatened or endangered species are present and whether they would be Lx adversely qffeted."1 Federal regulations implementing the ESA contemplate coordination of the consultation process with environmental reviews pursuant to NEPA. 2 NMFS guidance on the consultation process further explains how a' ESA § 7,16 U.S.C. § 1536(aX2).

A statement from NMFS concerning any incideanta take must specify the amount or extent of the impact, any reasoaable and prudent measures that the Director considers necessary or appropriate to minimize such Impacts,"

and any "terms and conditions (inclading but not limited to, reporting requirements) that must be complied with by the Federal agency or any applicant to implaemet [such] measures." 50 CF.R § 402.14(i).

17 See 50 C.F.R. § 402.14(g)

See id § 402.14(t).

"1s§ l402.15.

See t0 C.F.R. Par 5 t, Table B-t of Appendix B to Subpart A; GEIS § 3.9 ('Because compliance with the Endangered Species Act cannot be assessed without site-specific consideration of potential effects on threatened and endangered species, it is not possible to determine generically the significance ofpotential impacts to threatened and endangered species. This is a Category 2 isue.").

4' t0 C.F.R. Parn 51, Table B-t ofAppendic B to Subpart A (emphasis added).

4'See 50 C.F.R. § 402.06(a) ("Consultation, consfrence, and biological assessment procedures under section 7 may be consolidated with interagency cooperation procedures required by other stanttes, such as the National Environmental Policy Act... The Service will attempt to provide a coordinated review and analysis of tall environmental requirements.").

Comment response on preceding page(s).

[flormal consultation and the Services' preparation of a biological opinion often involve coordination with the preparation of documents mandated by other environmental statutes and regulations, including... NEPA.... The Services should assist the action agency or applicant in integrating the formal consultationwrocess into their overall environmental compliance.

Pertinently, ESA regulations and the NMFS Consultation Handbook indicate that "alot the time the Final EIS is issued, section 7 consultation should be completed" and that "[t]he Record of Decision should address the results of section 7 consultation."" Indeed, only after the issuance of a BO can the Federal agency "determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service's biological opinion."4s This settled and proper approach is demonstrated by numerous instances where ESA § 7 consultation processes were concluded well prior to the completion of a concurrent NEPA review process, and where a BO prepared by NMFS (or FWS) was incorporated into the final EIS and formed part of the basis for the Federal agency's final decision-making.4 43 NMFS Consultatioe Handbook, supra Note at 32, at p.4-1 I (emphasis added); see id ("A major concern of action agencies is often the timing of the consultatieo process in relation to their other environmental reviews. For example, since the time required to conduct formal section 7 consultation may be longer than the time required to complete preparation of NEPA compliance documents, the action agency should be encouraged to initiate informal consultation prior to NEPA public scoping. Biological assessments may be completed prio to the release ofthe Draft Environmental Impact Statement (DEIS) and formal consultatieo, if required, should be initiated prior to or at.

the time of release of the DEIS. Early inclusion of section 7 in the NEPA process would allow action agencies to share project Information earlier and would Improve interagency coordination and efficiency.").

4 Id (emphasis added); see 50 C.F.R. § 402.06(b) ("Where the consultation... has been consolidated with the interagency cooperation procedures required by other statutes such as NEPA..., the results should be included in the documents required by those staues."); Interagency Cooperation - Endangered Species Act of 1973, as Amended, Final Rule, 51 Fed. Reg. 19926 (1986) (NMFS and the U.S. Fish and Wildlife Service ("FWS") jointly enacting regulations implementing the ESA, explaining that "the biological opinion should be stated In theftnel environmental impact startment") (emphais added); id (explaining that "[a] statement of the opinion may be a summary of its findings and conclusions" although "[thel Service does feel that the entire opinion should be attached as an exhibit to the NEPA document if completion t ime permits.").

o 50 C.F.R. § 402.15; see als.o ESA § 7(d), 16 U.S.C. § t 536(d) (prohibiting agency action that forecloses formulation of reasonable mensuresateAmatives while consultation is ongoing).

"See, e.g., National Parks & Con.servation Aes 'n. U.S. Dep't of Transportation, 222 F.3d 677, 679, 682 (9th Cir.

2000) (BA and BO prepared pursuant to ESA both incorporated into Federal agency's Final IRIS, forming pare of the basis for agency's informed decision, which satisfied NEPA); Miccoasskee Tribe of Indians of Flat V. US Arm.y Corp. of Engrs, 509 F. Supp. 2d 1288, 1294 (S.D. Fla. 2007) (Army Corp appending BO to final supplemental EIS ond pointing to "years of consultation and cooperation with the FWS which preceded the FSEIS" tojustify its environmental analysis; Court fnmding that"the analysis in the FSEIS, including the attached BiOpp. (biological opinion] is sufficient") (emphasis added); Nw. £Eratl.

Advocates v. NMFS, 2005 U.S. Dist. LtXIS 41828, 6 (W.D.

Wash. 2005) (Federal agency "solicited comments on its draft FSEIS, including the NMFS Biological Opinion.

After considering and responding to the public comments, the Corps issued its FSEIS"); Sea.le Audubon Society v.

Lyons, 871 F. Supp. 1291, 1305, 1314,1320 (W. D. Wash. 1994)(FWS issued a biological opinion that was appended to the final EIS concerning a federal forest management plan, which formed pan of basis for the Federal agency's final deteminations).

9

Comment response on preceding page(s).

Since Atlantic sturgeon was listed after NRC Staff's issuance of the Indian Point license renewal FSEIS, there was no consultation process to be incorporated into the December 2010 FSEIS.

However, this does not relieve NRC Staff of the obligation to ensure proper consideration of the now ongoing section 7 consultation procedures. NRC Staff's vague reference to potentially considering the outcome of the section 7 consultation process related to Atlantic sturgeon does not ensure that the impacts to this critical species will be adequately considered by NRC Staff in the Indian Point relicensing NEPA process. Indeed, there is no indication that NRC Staff's NEPA review will fully address the findings, conclusions, or recommendations of NMFS relating to endangered Atlantic sturgeon present in the Hudson River. Based on the pithy "update" provided in the NRC Staffs Draft FSEIS Supplement, it appears that NRC Staff may continue to rely on its own analysis, and not on the input to be provided by NMFS. While the Draft FSEIS Supplement recognizes that the consultation process remains open, NRC Staff did not address in any way how the very relevant, as yet unwritten BO by NMPS would factor into the NRC Staffs FSEIS or NRC Staffs final decision-making regarding the license renewal of Indian Point.

This renders NRC Staffs Draft FSEIS Supplement and NEPA process fundatmentally flawed.

NRC Staffs apparent position that completing the NEPA review related to the proposed relicensing of Indian Point prior to the completion of the ESA § 7 consultation process with NMFS concerning Atlantic sturgeon, runs contrary to the ESA, applicable regulations and guidance, and settled practice, as discussed above. NRC simply cannot arrive at final NEPA conclusions regarding impacts to endangered Atlantic sturgeon and, ultimately whether to recommend license renewal of Indian Point, without satisfying its ESA § 7 obligations and fully considering NMFS' prospective biological opinion.

47 Indeed, such a regulatory scheme is the only way to ensure adequate and appropriate consideration of impacts to endangered or threatened species, and thereby comply with basic tenets of NEPA. The fundamental purpose of NEPA is to "ensuren that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts" and to "guarantee[] that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision."'

Thus, an EIS prepared pursuant to NEPA must he searching and rigorous, providing a "hard lcok" at the environmental consequences of the agency's proposed action. q It is impossible to conclude that NRC Staffs final determinations in the ultimate final FSEIS supplement can be "See 50 C.F.R. § 402.15 (only afler the issuance ofa aSO can the Federal agency "determine whether and in what manner to proceed with the antion in light ofits section 7 obligations and the Service's biological opinioa."): see also ESA § 7(d), 16 U.S.C. § 1536(d) (prohibitingogency action that forecloses formulation of reasonable measuaesaltensatives while consultation is ongoing).

4' Entergy Nuclear Generation Ca. and Enbergy Nuclear Operations Inc. (Pilgrim Nuclear Power Station), LBP-06.

23, 64 NRC 257, 217 (2006), quoting Robertson v. Meahow Yalley Citizens Council. 490 U.S. 332, 349 (1989); see also Vermom Yankee Nuclear Power Carp. V. Natural Resources Defense Council, 435 U.S. 519, 558 (1978)

(explaining how NEPA seeks to ensure "a fully informed and well-considered decision"); Nw. EnsviL Advocates V.

NMFE7, 2005 U.S. Dist. LEMUS 41828, 16 (W.). Wash. 2005) ('The processes established ander NEPA focus the attention of both the government and the public on a proposed agency action, so that the environmental consequences can be studied prior to implernentati*n of the proposed action, and so potential negative impacts can be avoided") (citing,40 C.F.R. § 1500. t(h); 40 C.F.R. § 1500.2(e); Marsh v. Oregon Natural Resources Councj.

490 U.S. 360, 371 (1989); Charchill County v. Norton, 276 F.3d 1060. 1072-73 (9th Cir. 2001)).

"Afarh, 490 U.S. at 374.

t0

Comment response on preceding page(s).

considered "fully-informed" and based on the requisite "hard look," if they are not informed by any feedback from the ESA § 7 consultation process related to Atlantic sturgeon (or if an additional supplement to the FSEIS is not prepared upon completion of the section 7 consultation process). Indeed, finalizing the NEPA process without the benefit of NMFS' assessment effectively ensures that NRC Staffs determinations regarding impacts to endangered species and the license renewal of Indian Point will not take into account any conclusions, findings, or recommendations of the consulting agency. This completely flouts the purpose of ESA § 7, which requires consultation with NMFS so as to inform the Federal agency's decision on the action to make certain that such action will not jeopardize any endangered species.50 For example, NMFS is charged with making an independent determination regarding whether the proposed action is likely to jeopardize any endangered species, making discretionary conservation recommendations to reduce or eliminate any impacts, determining whether a take permit is necessary, and formulant an opinion regarding any reasonable and prudent alternatives to the proposed project. 1 The opinions and recommendations from NMFS are highly critical given NRC Staffs continued reliance on outdated and/or incomplete information regarding impacts to Atlantic sturgeon.52 NMFS' assessment will contain opinions that will necessarily inform the relevant concerns, including opinions and conclusions that may well differ from those of NRC Staff, and that logically should be considered before NRC Staffarrives at any final conclusions about impacts to endangered species and, in turn, whether license renewal of Indian Point is appropriate. Without the benefit of NMFS' BO (which will contain NMFS' position on the impacts of the activity, potential alternatives, mitigation measures, the necessity of obtaining a take permit, ete), NRC Staff does not have all of the information necessary to make the relevant findings regarding the license renewal of Indian Point. Failure to fully consider the section 7 consultation process related to Atlantic sturgeon will result in determinations by NRC Staff that do not adequately take into account adverse impacts on endangered species, which NMFS ma% find to be significant and "likely to jeopardize the continued existence" of such species.

In sum, NRC Staffcannot draw final conclusions regarding the impact of Indian Point on Atlantic sturgeon in the Hudson River, or finalize the NEPA review process concerning the proposed license renewal of Indian Point, without a full and adequate consideration of the section 7 consultation process and input from NMFS. Notably, Pisces agrees that "[w]ithout more information an assessment for the Atlantic sturgeon is not possible.'T M A site specific assessment of environmental impacts of license renewal on Atlantic sturgeon is necessary for

"°See 16 U.S.C. § 1536(aX2); 50 C.F.R. § 402.14(g).

.See 50 C.F.R. § 4 0 2.1 4(g).

SSee. eg.. U.S. NRC. Biological Assessment for Relnitiation of Section 7 Consultation for the Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 Due to Listing of Atiantic Sturgeon, May 2012, ADAMS Accession No..

MLt12138A388, at 4, t0, Appendix A; sce also Revised Biological Assessment of tite Potential Effects on Federally Listed Endangerd or Threateaed Species from the Proposed Renewal of Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 (December 2010), ADAMS Accession No. ML102990046 (basing conclusions on "two-decade old impingement data and incomplete inpingmenet mortality data.").

n See 50 C.F.R. § 402.14(gX4).

Attnahnent A - Pisces Memo at p.3 of 22.

I I

NRC Staff to make informed conclusions in the FSEIS, and, in turn, informed recommendations regarding the appropriateness of relicensing Indian Point. Without meaningful consideration of NMFS' analysis pursuant to consultation procedures set forth by ESA § 7, the current findings in the FSEIS and Draft FSEIS Supplement in relation to impacts to endangered and threatened species lack proper foundation and are flawed and patently deficient.

For the foregoing reasons, NRC Staff's revised assessment of endangered species impacts caused by Indian Point remains inadequate.

NRC Cannot Issue Renewed Oerating Licenses to Indian Point Unless and Until Enterv Obtains All Required and Necessary Stare Approvals and Certifications Lastly, to the extent clarity is required notwithstanding the fact that the record is abundantly clear in the Indian Point license renewal proceeding, Riverkeeper reiterates the position that Entergy must obtain a new water quality certification pursuant to CWA § 401 prior to any license renewal for the plant. NRC Staffs December 2010 FSEIS acknowledged the ongoing nature of Entergy's appeal proceeding relating to NYSDEC's denial of Entergy's request for a CWA § 401 water quality cerdication. 5 In light of a recent United States Court of Appeals decision that was issued after the publication of NRC Staff's FSEIS, it may beuseful to include in NRC Staff's supplemental NEPA document an explanation regarding the unequivocal obligation of the NRC to comply with CWA § 401, and the distinguishing nature of the recent court ruling; Riverkeeper's position is fully explained in a letter that was provided to the NRC on July 26,.

2012, which is included with these comments as Attachment C."

Notably, as NRC Staffhas previously acknowledged in its initial FSEIS, Indian Point must receive a federal consistency determination from the State pursuant to the Coastal Zone Management Act5 7 before NRC may issue operating licenses authorizing the operation of Indian Point Units 2 & 3 beyond their initial 40-year ten-nsa8 NRC may not issue a license renewal prior to the issuance of the federal consistency concurrence by the Department of State pursuant to 16 U.S.C. § 1456(3)(A), which requires that "[n]o license or permit shall be granted by the Generic Environmestal Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Volume 1, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Docket Nos. 50-247 and 50-286 (December 2010),

available at. htn:l/nbadupws.nrc.g.ovdcsdo/ML1O33/ML1O3350405.0df at xv ("rwo state level issues (consistency with State water quality standards, and consistency with State coastal Zone management plans) need to be resolved.

On April2, 2010, the New York State Departnent of Enviranmnatal Conservation (NYSDEC) issued a Notice of Denial regarding the Clean Water Act Section 401 Water Quality Certificatian. Enteogy has since requested a hearing on the issue, and the matter will be decided through NYSDECs hearing procean."); see id at "vii-xviii, 1-8, 2-27, 4-8 to 4-9,4-30, 8-3, 9-5, A-15 1.

Letter from Deborah Brancato (Riverkeeper) to NRC Commissioners, Re: Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-247-LR 50-286-LR (July 26,2012) (Attachment C).

$7 16 U.S.C. §§ 1451-1464.

" See Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Final Report, Main Report and Comment Responses (NUREG-1437, Supplement 38, Volume I ), amailable at, hmtn:loebaduaws.nrc.govldocsIMLlO331ML103350405.ed. (last visited Aug. 20, 2012), at pp. 1-8, 2.141, 2-142 ("Based on IP2 and IP3's location within the State's Coastal Zone, license renewal of lP2 and IP3 will require a State coastal consistency certification").

12 001-48 00 1-5 001-5 Under Title 10 of the Code of Federal Regulations (10 CFR) 51.20(b)(2) and the National Environmental Policy Act of 1969, as amended (NEPA),

the renewal of a power reactor operating license requires preparation of an environmental impact statement (EIS) or a supplement to an existing EIS. An EIS is prepared for any action determined to be a major Federal action significantly affecting the quality of the human environment. In general, an EIS contains detailed analyses of the reasonably foreseeable environmental impacts of the proposed action, and the environmental impacts of alternatives to the proposed action, and involves extensive public participation and coordination with local, State, and other Federal agencies. Whether or not a new water quality certification or a CZMA consistency determination is needed for the NRC to issue a renewed license is not within the scope of this FSEIS Supplement. See Section 1.5 of the FSEIS for further discussion of this issue.

01 Federal agency until the state or its designated agency [DOS] has concurred with the applicant's 1001-5 certification. 9 Based on the forgoing, NRC Staf's revised Draft FSEIS Supplement contains flawed analyses and conclusions% and, as a result, NRC has yet to fully and adequately comply with NEPA in relation to the proposed license renewal of Indian Point.

Thank you for your consideration.

Respectfutly submitted, Deborah Brancato Staff Attorey Phillip Musegaas, Esq.

Hudson River Program Director Federal regulations at IS C.F.R. Part 930 sets forth these procedures; notably, a federal deternination is no substitute for the State deternination.

Comment response on preceding page(s).

13

Michael Wentzel Projects Branch 2 Division of License Renewal Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

Dear Mr. Wentzel,

UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmoapheric Admlnilsraton NATIONAL MARIN FfSlHES SERVICE NORTHEAST REGION 55 Great Republic Orin GoICeaeer. MA 0 930-2276 AUG - 7 2012 D/

002-1 This comment was received in response to the NRC's request for NMFS to review and comment. The comment provides no new information; therefore, no changes were made to this supplement to the FSEIS in response to this comment. This discussion of the NRC staffs consultations with NMFS under Section 7 of the Endangered Species Act has been updated to reflect the completion of those consultations, NMFS's issuance of a biological opinion in January 2013, and NMFS's issuance of an Incidental Take Statement for Indian Point Units 2 and 3.

0)

Your June 26, 2012, letter requests comments on the draft supplement to the final plant-specific Supplement 38 to NUREG-l 437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" (GEIS), regarding the license renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3 (IP2 and IP3). This is a supplement to the FSEIS you published in December 2010.

We have reviewed the document and have no substantive comments. The description of the information that has become available since the FSEIS was published is consistent with our understanding of the available information. Also, the description of the Endangered Species Act section 7 consultation that was completed in 2011 and reinitiatied in 2012 appears complete and accurate.

Thank you for the opportunity to comment on this document. We look forward to continuing to work with you on the ongoing consultation to consider effects of continued operations of IP2 and IP3 on shortnose and Atlantic sturgeon. Please contact Julie Crocker in our Protected Resources Division if you have any questions regarding this letter (978-282-8480 or Julie.Crocker(noaa.gov).

NED-Sincerely, j%*egional Administrator

-,9~-i ~9

&4~ ~S

Entor Nutimr NEtthealt Indi.n Point Energy Center P.O. Box 249 Buchanan. NY 10511-02A9 UTe (914) 254-2055 Fl ROnackno vice Presidefnt Operaiors Ucermle Renewa NL-12-121 August 2o 2012 Chief, Rules, Announcements, and Directives Branch Division of Administrative Services Office of Administration Mailstop: TWB-05-BO1M U.S. Nuclear Regulatory Commission Washington. DC 20555-0001

Subject:

Comments on Draft Supplement to the Final Plant-Specific Supplement 38 to NUREG-1437, Regarding License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3 Docket Nos. 50-247 and 50-286 License Nos. DPR-26 and DPR-64

Reference:

1. June 2012 Draft Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3.

2. March 18, 2009 Comments by Entergy regarding NUREG-1437, Draft Supplement 38. (ADAMS Accession No. ML091040133).

3. March 29, 2011 Comments by Entergy regarding Final Supplemental Environmental Impact Statement Indian Point Nuclear Generating Unit Nos. 2

& 3, Docket Nos..50-247 and 50-286 License Nos. DPR-26 and DPR-64.

(ADAMS Accession No. ML110980073).

Dear Sir or Madam:

Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. (collectively, "Entergy'). respectfully submits the following comments

('Comments') on certain portions of the June 2012 draft supplement (the "Draft Supplement') to the December 2010 Final Supplemental Environmental Impact Statement (CFSEIS') prepared by Nuclear Regulatory Commission ('NRC') Staff, and its consultants. for the Indian Point Nuclear Generating Unit Nos. 2 and 3 ("Indian Point') License Renewal Application, assessing the potential impacts of entrainment, impingement and thermal shock, Including associated mitigation (collectively. "Aquatic Issues'). These Comments relate to certain matters in the Draft Supplement that NRC Staff may want to address before its finalization.

We commend NRC Staff for its work in the Draft Supplement, particularly including NRC Staffs:

0O Docket Nos. 50-247 & 50-286 NL-12-121 Page 2 of 2 (1) corrections to impingement and entrainment data presented in the FSEIS and related conclusions; (2) revised conclusions regarding the absence of potential thermal shock and conclusions of SMALL thermal impacts as a function of Indian Point's compliance with New York State thermal water quality standards; and (3) update of the status of the NRC Staffs consultation with the National Marine Fisheries Service ("NMFS') under Section 7 of the Endangered Species Act ('ESA"), including NMFS's findings that continued operation of Indian Point would not adversely affect shortnose sturgeon. See Draft Supplement: pp. iii (summary);

3-17 (corrections of impingement and entrainment data, including to reflect assessment of SMALL potential impacts to spottail shiner); 17-21 (thermal impacts of Indian Point should be SMALL) and 23-26 (completion of NMFS consultation for shortnose sturgeon and update on re-initiation of consultation for recent listing of Atlantic sturgeon).

Entergy concurs with these findings and conclusions in the Draft Supplement, except as noted below.

Specifically, Entergy requests that the NRC Staff revisit and address the comments that Entergy previously submitted, respectively dated March 18, 2009 and March 29, 2011, on the December 2008 Draft Supplemental Environmental Impact Statement ('DSEIS') and FSEIS, copies of which are expressly incorporated as if fully set forth here. These prior comments, including the technical appendices to those comments evaluating nearly four decades of biological monitoring of fish species in the Hudson River, establish that any potential impingement and entrainment impacts of Indian Point's continued operations during license renewal are property considered SMALL to all identified fish species, including on Table 4-4. See Supplement, p. 9. To that end, we respectfully request that NRC Staff's findings of potential impingement and entrainment impacts in the Draft Supplement, including in Table 4-4, regarding alewifeiblueback herring (evaluated as 'river herring' at life stages susceptible to entrainment at Indian Point),

hogchoker, rainbow smelt, weakfish and white perch, be determined to be SMALL.

We appreciate NRC Staff's efforts in this regard, and respectfully request that it implement these Comments when it publishes Final Supplement 38. There are no commitments identified in this submittal. Should you have any questions regarding these Comments, please contact Dara Gray at (914) 254-8414.

FRD/mb cc:

Mr. William Dean, Regional Administrator, NRC Region I Mr. Sherwin E. Turk, NRC Office of General Counsel, Special Counsel Mr. Dave Wrona, NRC Branch Chief, Engineering Review Branch I Mr. Robert F. Kuntz, NRC Sr. Project Manager, Division of License Renewal Mr. Douglas Pickett, Senior Project Manager, NRC NRR DORL Mr. Michael Wentzel, NRC Environmental Project Manager, IPEC License Renewal NRC Resident Inspector's Office Ms. Bridget Frymire, NYS Dept. of Public Service Mr. Francis J. Murray, Jr., President and CEO NYSERDA 003-1 Regarding Entergy's 2009 comments on the draft SEIS, the staff addressed those comments in the FSEIS and modified its entrainment and impingement analysis methods in the FSEIS in response to new information and comments submitted on the DSEIS.

Regarding Entergy's 2011 comments on the FSEIS, the staff considered those comments in depth in preparing the FSEIS. This supplement to the FSEIS discusses only those comments for which new information could change any conclusions in the FSEIS.

The NRC's 2012 "Technical Analysis and Support for Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Volume 4 Draft Report for Comment (NUREG-1437, Suppl. 38, Vol. 4, June 2012)" (ML12257A346) presents the NRC staffs assessment of Entergy's 2011 comments and the analyses the staff conducted to better understand the implications of the comments and how these comments might affect the staffs FSEIS conclusions. The staff did not find any new and significant information in Entergy's previous comments beyond the information that the staff has already addressed.

003-

004-1 This comment expresses support for the

-/ ?/*-c--updates in the draft supplement to the FSEIS and for NRCREP Resource the renewal of the IP2 and IP3 operating licenses. This From:

Arthur "Jerry" Kremer [info@area-alanceorg_

comment does not provide any new information; sent:

Friday, August 17, 2012 2:44 PM To.

NRCREP Resource therefore, no changes were made to this supplement to

Subject:

Response from"comment on NRC Documents"

/?'./

the FSEIS in response to this comment.

Below is the result of your feedback form. It was submitted by Arthur "Jerry" Kremer (infoaarea-alliance.org) on Friday, August 17, 2012 at 14:43:59 Document

Title:

Generic Environmental Impact Statement for Ucense Renewal of Nuclear Plants: Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Draft Report for Comment (NUREG-1437, Supplement 38, Volume 4)

Comments: August 17, 2012 Chief, Rules, Announcements, and Directives Branch Division of Administrative Services Office of Administration Mail Stop: TWB-05-BOIM U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Dear Sir or Madam:

I am writing on behalf of the New York Affordable Reliable Electricity Alliance (New York AREA) to express support for your revisions to the Generic Environmental Impact Statement for Indian Point Energy Centers Units 2 and 3, as outlined in NUREG-1437, Supplement 38, Volume 4, draft supplement to final.

CThe revised supplement to the EIS indicates that the initial assessment of the Indian Point's impact to the Hudson River was greatly over estimated. Specifically, NRC staff overestimated the entrainment losses for each of the representative important species studied in the analysis by a factor of 1000.

NRC also revised conclusions regarding the impact of thermal discharge from Indian Point Units 2 and 3, based on information provided by the New York State Department of Environmental Conservation. The New York State DEC's findings indicate that the discharge from Indian Point Units 2 and 3 is in compliance with its water quality standards and criteria for thermal discharges.

As stated on page 20, lines 25-28, "NYSDEC and NYSDEC's (2011) conclusions regarding studies provide reasonable assurance that the IP2 and IP3 discharge is in compliance with NYSDEC's water quality standards and criteria for thermal discharges.-

The report's revisions show that the slightly heated water released from Indian Point has a 'small" impact to the Hudson River and confirms our belief that there is no environmental reason precluding the plant from having its operating licenses renewed.

Of particular note, the National Marine Fisheries Service finds that the shortnose sturgeon is not threatened.

As stated from page 23, line 42, to page 24, line 4, 'in its biological opinion, NMFS concluded that shortnose sturgeon are likely to avoid the small area of water elevated above the species preferred temperature range and that - it is extremely unlikely that these minor changes in behavior will preclude shortnose sturgeon from completing any essential behaviors such as resting, foraging or migrating or that the fitness of any individuals will be affected."

The license renewal of Indian Point is important for New York's environment, in particular our air quality. Indian Point's continued operation reduces New York's need for fossil fuels, thereby mitigating carbon and other toxic 5*'

4*"*" *

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emissions. In light of New York's often poor air quality and continuing non-compliance with the federal Clean Air Act, it is imperative that the plant obtain license renewal.

Thank you for your time.

Sincerely, Arthur J. Kremer Chairman New York AREA organization: New York Affordable Reliable Electricity Alliance (New York AREA) addressa: 114 West' 47th Street address2: 19th Floor city: New York state: NY zip: 10036 country: United States phone: 212-683-1203 Comment response on preceding page(s).

C,

Fax Server 8/20/2012 3:07:15 PM PAGE 2/0UU New York State Department of Environmental Conservation Office of General Counsel, 14" Floor 625 Broadway, Albany, New York 12233-1500 Fax: (518) 402-9018 Webslte: wwwwdecmnv.ao Fax Server A&

1011111111

,1Wstue August 20, 2012 Cindy Bladay Chief, Rules, Announccnnenta, and Directives Branch Office of Administration Mail Stop: TWB-OS-BOIM U.S& Nuclear Regulatory Commission Washington, D.C. 20555-0001 Re:

Draft Supplement to Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment dated June 2012 (NUREG-1437; Supplement 38, Vol. 4); 77 Fed. Reg. 40091 (July 6,2012)

Dear Ms. Bladey On hehalfofthe New York State Department of Environmental Co*aservaion

("NYSDEC"), please accept the following comments regarding the U. S. Nuclear Regulatory Commission's ("NRC'") Draft Supplement lo Suppleente."3 to ithe Generic EnvironMeatal Impact Statement for License Renewal of fuclear Plants. Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment dated June 2012 (NUREG-1437; Supplement 38, Vol. 4) ("Draft Report'). NYSDEC appreciates the efforts ofNRC Staffto augment the record of the Final Supplemental Environmental Impact Statement so that it may consider new data, analyses, and comments from varous sources. Although NYSDEC Staff concur with NRC Staffs conclusions in some respects, NRC Staffs decision to continue its reliance on out of date entrairnment and impingement data, without requiring production of more current data into the record and incorporating that into its analysis to make its findings with respect to entramment and impingement impacts is inconsistent with the National Environmental Policy Act ("'EPA") and associated Council on Environmental Quality ("CEQ") and NRC regulations and reflects a fundamental error in regulatory judgment that infects other aspects of the NRC's relicensing review. Moreover, NRC Staffshould expand the scope of its environmental review and include a thorough analysis of the environmental impacts of severe accidents at the Indian Point facilities on water resotuces and the alternatives to mitigate such impacts.

005-1 This comment is similar to comment 001-2. The staff's assessment of aquatic species population trends in both the FSEIS and the supplement to the FSEIS uses empirical monitoring study data from the Hudson River Monitoring Program from 1974 through 2005 (the most recent data then available), and its assessment of thermal impacts in the supplement uses data from a study that Entergy submitted to the NYSDEC in 2011.

The staffs analyses based on these empirical studies take into account any changes to the fish populations in the Hudson River that have occurred over the years.

The impingement and entrainment data used in the strength of connection analyses (dated from 1975 through 1990) are the best and most recent site-specific data available. The staff has no reason to believe that the conditional impingement and entrainment mortality rate estimates based on those data would be different today, and the commenter presents no information to suggest that such rates have changed. The staff made no further changes to this supplement to the FSEIS in response to this comment.

,>~

NRC Staff's Draft Report corrects a mathesnatical error concerning entrainment and impingement field data (see "Technical Review of FSEIS for Indian Point Nuclear Generating Unit Nos. 2 and 3" [AKRF 2011 b]). However, this correction overlooks the fact that the foundational data base for entrainment and impingement at Indian Point Units 2 and 3 is more than 25 years old and out of date (i.e, entraneent or impingement data have not heen collected at Indian Point since 1987), providing an inadequate basis for determining the gravity and harm to be accorded to this adverse environmental impact under NiPA.

NRC Staff's expressed purpose in this stage of its NEPA review was to conduct an analysis that is "more holistic than a general fisheries biology approach." However, the data on which NRC Staff appeara to rely and the approach that NRC Staffundertook in the June 2012 Draft Report was precisely that: a geeral fisheries approach, relying heavily on the Hudson 005-1 Regarding the approach used in the staffs analysis, the staff used a weight of evidence approach adapted from EPA's guidelines for ecological risk assessment rather than a single species fisheries modeling approach. The staff acknowledges that it could have undertaken a broader, even more holistic analysis had data been available for aquatic non-fish populations. The Hudson River Monitoring Program on which the staff based its trend analyses is an extensive and well-designed monitoring program that samples many fish species; the staff found it provides reliable and substantial data that are adequate to support an impact assessment for the purposes of NEPA.

I

Fax Server 812012012 3:07:15 PM PAGE 3/004 Fax Server Comment response on preceding page(s).

2.

River Monitoring Program data. See Final Supplemental EIS, at H-13. The underlying analytical error committed by NRC Staff during this review process was that it failed to obtain appropriate and timely data to accomplish this stated purpose. Thus, NRC's NEPA analysis has necessarily failed to accomplish that goal.

A full and complete NEPA analysis requires that a thorough and temporally relevant study he conducted to collect data for determining the potential impacts of entrainment and impingement over the proposed relicensing term. NRC regulations contemplate preparing a aupplement to a final environmental impact statement when, in NRC Staff's opinion, preparation ofa suppletment will further the purposes noflEPA. 50 C.F.R. 6 51.92(b); 40 C.F.R.

§§1500.1(b), 1502.22, 1502.24. (CEQ regulatioou provide ta when an agency is conducting an BIS, it must make clear where there are gaps in relevant information due to incomplete or unavailable information and take steps to remedy such gars or, relevant information cannot be obtained, identify its relevance to evaluating the reasonably foreseeable signifirant adverse impacts on the human environnent [40 C.F.R. § 1502.22], an# idnsst insure the "professional integrity, inclUding scientific interity, of the discussions and amnlyses in enviromtental impact statements." 40 C.F.R. § 1502.24.). See also the Draft Report, Executive Sutnmary, p. ix.

The NRC is thus obligated to ensure the timeliness, currency and quality of data supporting its NEPA analyses. However, NRC Staffhave not required Entcrgy to perform the aforesaid data gathering; NYSDEC brought this fundamental failure to expand the data base to the NRC's attention in its May 26, 2011 comments on the Final Supplemental EIS for the rLicense Renewal for Indian Point Unit Nos. 2 and 3 0n pages 18 and 19. Current assessment is critical. The Hudson River's fish community and habitat has changed significantly since the 1980s, and the NRC's failure to require that the applicant produce data reflecting those changes N0-ya*

Wglwth integrity of'any enisanment and impingement impact analysis with In the NEPA context, courts have consistently rejected the use of data more than ten years old, that measures a vital aspect of the curmulative environmental effects of past and current usage, or affects a decision resulting in a serrios environmental impact. See, e.g. LatIr Council

v. Forester of Region One of the United State Forest Serv., 395 F.3d 1019,1031 (9th Cir. 2005)

(holding that the use of 13-year-old trout habitat information prevented an accurate impact assessment of the project); Sierra Club v. U.S Dep't ofAgrteslture 1995 U.S. Dist. LEXIS 21507, 039 (S.D. IIl. Sept 25, 1995) (rejecting the use of 10-year-old songbird population data when more recent data should have been gathered).

Courts have also been hesitant to approve decisions based on old data that is vital in determining the cumulative effect ofpast and current land use. For example, the U.S. Court of Appeals for the 5? Circuit has confirmed the need for a supplemental EIS where new scientific evidence about the impact of logging on the survival ofthe Northern Spotted Owl was available.

See. PortlandAudubon Society '. Babbitt, 998 F.2d 705 (9th Cir. 1993). Lacking that information, incluming recent scientific developments, "t(the existing Timber Mantagement Mana

[did] not adequately address the impact of the individual planned timber sales on the survival of the northern spoted owl subspecie." Id. at '709. In Lands Counci. the couat cited the importance of evidence ofcurrent conditions in determining the cumulative effect ofýast and current timber harvesting on trout habitat ayd population, finding "the data about the habitat of the Westslope Cutthroat Trout was too outdated to carry the weight assigned to it." Lands Council, 395 F.3d at 103 1. Similarly, in Sierra Club the court took issue with the use of outdated songbird population data, which was used as an indicator to monitor population trendt in general. Sierra Club, LEXIS at 039. Also the U.S. District Court for the District of Washington rejected data precisely because it pre-dated the effects on at-risk species of

Fax Server 8/20/2012 3:07:15 PM PAGE 4/004 Fax Server 3.

disturbances caused by timber harvesting, and required the agencies involved to conduct full, accurate species reviews on all species protected by the "Survey and Managc" program before it could be eliminated. Coieraion Northwevi v. Rey, 674 F. Supp. 2d 1232, 1252-1253 (D.

Wash. 2009).

Here, the 1987 data relied on by NRC Staffconcnming the envirorunental impacts caused by Indian Points Unit 2 and Unit 3 diversion of water is obviously stak and universally recognized by regulators to be out of date, yet NRC Staff'has not informned its own environmental analysis and decision making by requiring the submission of current, mare relevant data. Without serious consideration of data representing the present impacts associated with entrainment and impingement from Indian Point Unit 2 and Unit 3, tIe NRC's final NEPA analysis and NEPA recommendation rogading Entergy's application for license extension will not be supported by sufficient and more accurate scientific information.

NEI-Accordingly, the NYSDEC therefore respectfully requests that NRC forego finatization of the Draft Report and direct Entergy to obtain corsprehsensive and timely data and to allows meaningful assessment of the current sature and extent of adverse impacts from Indian Point Unit 2 and Unit 3 associated with entrainment and impingemenL Moreover, given the impacts caused by the recent multi-reactorsevere accidents in Japan, the NYSDEC respectfully requests that NRC review the potential environmental impacts of severe accidents involving tie Indian Point reactors and spent fuel pools on surface waters and FO5-2 drinking water resources in the 50 miles surrounding the Indian Point site and explore alternatives to mitigate such impacts.

V s2 Ifyu 1

sbitted, dudF. MTie.e Deputy Counsel cc:

l*ldianPoint.EISINRC.grov 005-2 As noted in the comment, a massive earthquake off the east coast of Honshu, Japan, produced a devastating tsunami that struck Fukushima. In response to the earthquake, tsunami, and resulting reactor accidents at Fukushima Dai-ichi (hereafter referred to as the "Fukushima events"), the Commission directed the staff to convene an agency task force of senior leaders and experts to conduct a methodical and systematic review of relevant NRC regulatory requirements, programs, and processes. Based on the agency's current knowledge of the Fukushima events, they do not provide a seriously different picture of the environmental impacts of severe accidents (as compared to the severe accident parameters analyzed in the GElS (e.g., GElS Chapter 5)), so as to require specific consideration in this FSEIS supplement.

Nevertheless, the NRC will continue to evaluate the need to make improvements to existing regulatory requirements based on the task force report and additional studies and analyses of the Fukushima events as more information is learned. To the extent that any revisions are made to NRC regulatory requirements, they would be made applicable to nuclear power reactors generally, regardless of whether or not they have a renewed license. Therefore, no additional analyses have been performed in this FSEIS Supplement as a result of the Fukushima events.

This comment provided no new or significant information regarding the information or analysis in this supplement to the FSEIS that would challenge the conclusions of the supplement; therefore, no change was made to this supplement to the FSEIS.

-a

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 2 290 BROADWAY NEWYORK, NY 10007-1866 AUG 14 201Z 3

2l Cindy Bladey Chief, Rules, Announcements, and Directives Branch Office of Administration Mail Stop: TWB-05-BOIM U.S. Nuclear RegulatoryCommission Washington, DPC. 20555-0001 Rating: EC-2

Dear Ms. Bladey:

In accordance with Section 309 of the Clean Air Act and the National Environmental Policy Act (NEPA), the U.S. Environmental Protection Agency (EPA) has reviewed the Nuclear Regulatory Conmmission's (NRC) Draft Supplement to Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (CEQ#20120215), regarding the renewal of operating licenses for an additional 20 years of operation for the Indian Point Nuclear Generating Units Nos. 2 and 3 (IP2 and IP3).

IP2 and IP3 are located in Westchester County in the Village of Buchanan, New York, approximately 24 miles north of New York City.

Subsequent to NRC's release of the final supplemental environmental impact statement (FSEIS) for relicensing 1P2 and 1P3 in December 2010, NRC staff identified new" information warranting changes to its assessment in the FSEIS. This included information on the entrainment and impingement field data units ofmesure, the completion of a study characterizing the IP2 and IP 3 thermal plume, and completion of the Endangered Species Act (ESA) consultation on shortnose sturgeon (Acipenser brevirostrumn).

EPA notes the changes using the appropriate units for the impingement and entrainment information in the FSEIS. While it does not significantly alter the conclusions made by the NRC staff in the FSEIS, and notwithstanding previous NRC responses to our comments, EPA still remains concerned about the aquatic impacts of cooling water intake and discharge at IP2 and IP 3. New impingement/entrainment data would have provided NRC and others with the information necessary to determine the level of significance of the impacts with more certainty. EPA has no comments on the thermal study or ESA consultation.

006-1 The staff acknowledges that new impingement and entrainment data could increase the certainty of the staffs conclusions. In numerous places in the FSEIS, the staff pointed out the lack of confirmatory studies on impingement mortality. The New York State Department of Environmental Protection (NYSDEC),

not the NRC, regulates construction and operation of cooling water intake structures under the Clean Water Act and both Federal and New York State regulations.

Therefore, the NYSDEC can require further studies on impingement and entrainment mortality rates, should it choose to do so. Although additional impingement mortality studies might increase the certainty of the staff's findings, the staff has no reason to believe that the conditional impingement and entrainment mortality rate estimates that it used would be significantly different today, and the commenter presents no information to suggest that such rates would have changed. In addition to these data, the staff utilized data for the period of 1974 through 2005 from the Hudson River Monitoring Program, which is an extensive and well-designed monitoring program that samples many fish species, affording the staff a high degree of confidence in its findings. The staff made no further changes to this supplement to the FSEIS in response to this comment.

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We appreciate the opportunity to comment on the document. If you have any questions, please call Lingard Knutson of my staff at (212) 637-3747.

Sincerely, Judy-Ann Mitchell, Chief Sustainability and Multimedia Programs Branch Clean Air and Suastainability Division cc: Paul Giardina, CASD-RIAB

007-1 This comment was received in response to the NRC's request for the U.S. Department of Interior to review and comment on the draft supplement to the FSEIS. The comment provides no new information; United States Department of the Interior therefore, no changes were made to this supplement to OFFICE OFTTHE SECRETARY TAKE PRID, the FSEIS in response to this comment.

Office of Environmental Policy and Compliance INAMERICA 408 Atlantic Avenue - Room 142 Boston, Massachusetts 02110-3334 August 20, 2012 9043.1 ER 12/488 Cindy Bladey, Chief, Rules, Announcements, and Directives Branch Office of Administration Mail Stop: TWB-05-BOIM U.S. Nuclear Regulatory Commission Washington, DC 20555 RE:

COMMENTS Docket ID NRC-2008-0672

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Draft Supplement to Supplement 38 Indian Point Nuclear Generating Units 2 and 3 Westchester County, New York

Dear Ms. Bladey:

The U.S. Department of the Interior (Department) has reviewed the Draft Supplement to Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS), NUREG-1437, regarding the renewal of operating licenses DPR-26 and DPR-64 for an additional 20 years of operation for Indian Point Nuclear Generating Units 2 and 3, Buchanan, Westchester County NY (Docket ID NRC-2008-0672). The Department has no comment on the Draft Supplement.

Thank you for the opportunity to review and comment on this supplement. Please contact me at (617) 223-8565 ifl can be of assistance.

Sincerely, Andrew L. Raddant Regional Environmental Officer

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STATE OF NEW YORK OFFICE OF THE AmtORNEY GENERAL ERIC T. SCHNEIDERMAN AnWosEY GENEra.

DIVISION OF SOCIAL JUSTICE EsVaOsiir'r.

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-Orcn Bmsýu Cindy Bladey Chief, Rules, Announcements, and Directives Branch Office of Administration Mail Stop: TWB-05-01M U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 August 20, 2012

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Re: Draft Supplement to Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment dated June 26, 2012 NUREG-1437; Supplement 38, Vol. 4; 77 Fed. Reg. 40091 (July 6, 2012).

Docket Nos. S0-247-LR/50-286-LR

Dear Ms. Bladey:

Enclosed please ftnd comments submitted by the Stale of New York Office of the Attorney General concerning NRC Staff's draft supplemental environmental impact statement.

All citations and references mentioned in the comments are hereby incorporated by reference. Should NRC Staffhave difficulty obtaining any such citations and references, they are requested to contact the Office of the Attorney General for the State of New York for assistance. Please include these comments in the record.for this proceeding.

Respectfully submitted, Signed (electronically) by John J. Sipos Assistant Attorney General (518) 402-2251 john.sipos@ag.ny.gov cc: [ndianPoint.EIS(@iNRC.gov

,.5 THE CAPITOL, ALBANY, N.Y. 12224-0341.PaOsE(Stt)473-3105 a FAx (518) 473-2534 0 W.AG.NY.coV 6cA;&.

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COMMENTS BY THE NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL DRAFT SUPPLEMENT TO SUPPLEMENT 38 TO THE GENERIC ENVIRONMENTAL IMPACT STATEMENT FOR LICENSE RENEWAL OF NUCLEAR PLANTS, REGARDING INDIAN POINT NUCLEAR GENERATING UNIT NOS. 2 AND 3, DRAFT REPORT FOR COMMENT DATED JUNE 26,2012 NUREG-1437; SUPPLEMENT 38, VOL. 4; 77 FED. REG. 40091 (JULY 6,2012)

DOCKET Nos. 50-247-LR/50-286-LR So Submitted: August 20, 2012

(0 Earlier this year, the State of New York wrote to NRC to express the State's concern about the narrow scope of NRC Staff's proposed supplemental review and revision of the Final Supplemental Environmental Impact Statement for the requested extension of the operating licenses for Indian Point Unit 2 and Indian Point Unit 3. See March 28, 2012 letter from J. Sipos to S. Turk (NRC) ML12090A609. Recently, NRC Staff released a draft report for public comment. NUREG-1437, Supplement 38, Vol. 4 (June 26, 2012) MLt2174A244. In anotice in the Federal Register, Staff requested comments by August 20, 2012, 77 Fed. Reg. 40091 (July 6, 2012). The scope of the draft supplemental report remains far too narrow and is inconsistent with the National Environmental Policy Act and the implementing regulations promulgated by the Council on Environmental Quality and NRC.

NRC Staff's EIS Should Include a Site Specific Examination of the Impacts of Severe Accidents on Water Resources, Including Drinking Water Resources, Within 50 Miles of Indian Point and the Alternatives to Mitigate Such Impacts NRC Staff prepared the draft report to examine information about environmental impacts ofissuing renewed operated licenses to the Indian Point facilities on aquatic resources, but the supplemental review conducted by Staffexamines only a narrow aspect of such impacts. The State previously requested that NRC Staffreview the impacts of a severe accident on water resources, including drinking water resources. Such a review should include a thorough analysis of the value of such resources and the cost to decontaminate and remediate those resources, or provide replacement drinking water. Several reservoirs that provide drinking water resources for New York communities - including New York City - are located within 50 miles of the Indian Point facilities, yet NRC had not examined the environmental impacts that would result from a severe accident that deposited radionuclides into those water resources or the cost to 008-1 As discussed in Section 5.1.2 of the FSEIS, the issue of severe accidents at nuclear power plants and the resulting impacts on the environment, including impacts to surface water and groundwater resources, was evaluated in NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GELS). The determination in the GElS is that the probability-weighted consequences of severe accidents are SMALL for all plants; however, alternatives to mitigate severe accidents must be considered for all plants. As detailed in Section 5 and Appendix F of the FSEIS, the NRC evaluated Entergy's analysis of alternatives to mitigate severe accidents (referred to as SAMAs), and found that Entergy has appropriately identified areas in which risk could be reduced in a cost-beneficial manner.

This comment provided no new or significant information regarding the information or analysis in this supplement to the FSEIS that would challenge the conclusions of the supplement; therefore, no change was made to this supplement to the FSEIS.

008.1

decontaminate or replace those resources. Nor has NRC Staffexamined alternatives to mitigate such impacts. Thus, NRC Staff has failed to conduct an adequate site specific analysis of the environmental impacts of a severe accident at Indian Point on water resources.

NRC Staff's EIS Should Examine the Impact of Severe Accidents to the Spent Fuel Pools at Indian-Point and the Alternatives to Mitigate Such Impacts Substantial amounts of spent nuclear fuel are contained in the spent fuel pools at Indian Point Unit 2 and Indian Point Unit 3. Recently, Entergy representatives disclosed that Entergy intendeds to maintain current dense storage practices at Indian Point during any relicensing term granted by NRC. Specifically, during the May 8, 2012 site visit to the Indian Point facilities by 008-2 The issue of spent fuel storage accidents during the term of any renewed license was evaluated in the GElS and determined to be of SMALL impact for all plants, and, thus, was designated a Category 1 issue for license renewal. The Commission reaffirmed this in 2008 upon denying two petitions for rulemaking seeking to challenge the Category 1 designation (73 FR 46204).

The Commission's determination to consider SFP accidents on a generic basis in the GElS rather then in a site-specific SEIS - was upheld in Massachusetts v NRC 522 F. 3 rd 115, 127 (1st Cir. 2008). As the Commission stated in 2008, "given that the SFP risk level is less than that for a reactor accident, a SAMA that addresses SFP accidents would not be expected to have a significant impact on total risk for the site."

As a result of a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit, in New York v. NRC, 681 F.3rd 471 (D.C. Cir., June 8, 2012),

the issue of spent fuel storage, as it relates to the Commission's Waste Confidence Decision, (codified at 10 CFR 51.23), is subject to ongoing consideration by the Commission as a generic issue; this issue is outside the scope of this FSEIS suplement, and therefore, no change was made to address the issue in this supplement to the FSEIS.

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the Atomic Safety and Licensing Board, Entergy representatives made the following statements about Entergy's plans for spent nuclear fuel at Indian Point:

(A)

All of the spent fuel generated during since the start of commercial operation of Indian Point Unit 3 remains in the Indian Point Unit 3 spent fuel pool (as of the date of the site visit) (stated differently, the Unit 3 spent fuel pool holds 36 years worth of spent nuclear fuel);

(B)

Entergy has no current plans to construct an additional dry cask storage area (in addition to the existing dry cask storage area); and (C)

At the end of operation under any 20-year extension of the current operating licenses, Entergy estimates that the existing dry cask storage area would be filled to capacity and that the Indian Point Unit 2 spent fuel pool and the Indian Point Unit 3 spent fuel pool would be filled to capacity as well.

NRC Staffhas not examined alternatives to the continued dense storage of spent nuclear fuel in the Indian Point spent fuel pools.

008-NRC can no longer maintain that dry cask storage and densely packed spent fuel pools provide comparable long term storage options. The differences between the two storage methods are illustrated by the following chart reflects NRC's list of priorities five days into the

Fukushima disaster. The conditions at Fukushima Daiichi Unit 1, Unit 2, and Unit 3 were worse than that reached at any time during the Three Mile Island Unit 2 reactor accident, yet the NRC's higher priority was the Daiichi Unit 4 spent fuel pool.

SFukushima Daiichi Summary Display Priority Unit STATUS AS OF 06:00 EDT (19:00 Local) - 03/1612011 Core Status -SevenCre

=

daarge (banld Oll V anount of hydrogern generated).

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n ntad. S40ondaM C.l;M enA destroyd Spenta Fue Pool - No bfotanaon an SFP Idahum Core Statux - Soma. care darag Wy. Radiaton r~elea has oc*ned. Posabe RCS bn-c (GE).,Sea water inj*cion to RPV.

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6 6

,*hrUdw" Sh'a ugud14, 20?Q, COftoadednRPV. RPVISFP knll-k b-then normal. unit 6 DKG provimg nlle*Jp wamte to Untd S. (LAJ-A).

008-2 The NRC continues to evaluate relevant regulatory requirements, programs, and processes in light of the reactor accidents at the Fukushima Dai-ichi nuclear power plant. Based on the agency's current knowledge of the Fukushima events, they do not constitute information that would reveal a seriously different picture of the environmental impacts of severe accidents (as compared to the severe accident parameters analyzed in the GELS) so as to require specific consideration in this supplement to the FSEIS.

The NRC will continue to evaluate the need to make improvements to existing regulatory requirements as more information is learned. To the extent that any revisions are made to NRC regulatory requirements, they would be made applicable to nuclear power reactors generally, regardless of whether or not they have a renewed license.

This comment provided no new or significant information regarding the information or analysis in this supplement to the FSEIS that would challenge the conclusions of the supplement; therefore, no change was made to this supplement to the FSEIS.

008.2 C,>

Source: NRC ADAMS Accession No. ML12080A196 (frame 259 of 782) (placed on public ADAMS on March 23, 2012) (highlight added). Moreover, there were concerns about radiation releases from the fuel rods in the Unit 4 spent fuel pool. Id (frame 252 of 782 ("Rad release -

possible from SFP")). Not only was the Daiichi Unit 4 spent fuel pool a top NRC priority, but it appears that the Daiichi Unit 4 spent fuel pool was not as densely packed as the two spent fuel pools at Indian Point Unit 2 and Indian Point Unit 3. In contrast, the spent nuclear fuel stored in the dry cask storage facility at Fukushima Daiichi was not included in NRC's list of priorities.

(jo NRC Staff's EIS Should Examine How the Federal Government and its Agencies Will Respond to Severe Accidents at Indian Point and Pay for the Decontamination of the New York Metropolitan Area Including its Water Resources The State previously raised concerns about the federal government's ability to respond to a severe accident at Indian Point. Although Entergy has asked NRC to issue two operating licenses for the Indian Point reactors, spent fuel pools, and attendant facilities, it not clear that NRC has the desire, capability, or financial resources to respond to a severe accident at Indian Point and ensure the thorough decontamination of the New York metropolitan area including, but not limited to, its water resources - and drinking water resources - in the wake of such an accident.

ýJ,ý.R C

n C m isinr'-bsratos Pos I-AccidentPoicy Questions Thr is no reuatr frmeor for 008-3 As part of the Federal government's National Response Framework, NRC is the Coordinating Agency for radiological events occurring at NRC-licensed facilities and for radioactive materials either licensed by NRC or under NRC's Agreement States Program. As the Coordinating Agency, NRC has technical leadership for the Federal government's response to the event. If the severity of an event rises to the level of General Emergency, or is terrorist-related, the Department of Homeland Security will take on the role of coordinating the overall Federal response to the event, while NRC would retain a technical leadership role; other Federal agencies who may respond to an event at an NRC-licensed facility, or involving NRC-licensed material, include the Federal Emergency Management Agency, the Department of Energy, the Environment Protection Agency, the Department of Agriculture, the Department of Health and Human Services, the National Oceanographic and Atmospheric Administration, and the Department of State.

Costs associated with nuclear incidents are governed by the Price-Anderson Nuclear Industries Indemnity Act (Price-Anderson Act; 42 U.S.C. 2210). The Price-Anderson Act is a Federal law that governs liability-related issues for non-military nuclear facilities in the United States. The main purpose of the Act is to provide prompt and orderly compensation to the public who may incur damages from a nuclear incident, no matter who might be liable.

7008-3ý Power Point Presentation, Health Physics Society (Feb. 6, 2012).

008-3 cont'd Power reactor licensees are required to have the maximum level of primary insurance available from private sources (currently $375 million per 10 CFR 140.11) and are also required to participate in a Secondary Financial Protection Program. Under this program, should an accident at any participating power reactor result in injury or damage in excess of the maximum level of primary insurance, all power reactor operators will be charged a retrospective premium, up to a maximum of $111,900,000 per reactor per incident per 10 CFR 140.11. These insurance levels are subject to adjustments due to inflation at 5-year intervals. The last adjustment was made in August 2009.

There currently are 104 power reactors that participate in the Secondary Financial Protection program, creating a combined level of protection under both the primary and secondary layers of approximately $12 billion.

In the event of a nuclear incident involving damages in Cexcess of the limits established in the Act, Price Anderson includes a provision that obligates Congress to take appropriate action to provide compensation for public liability claims.

This comment is outside the scope of the license renewal environmental review, and provided no new or significant information that would warrant a change to this supplement to the FSEIS.

S, '

008-4 This is a conclusion or summary of comments 008-1 through 008-3, discussed above.

This comment provided no new or significant information that would warrant a change to this supplement to the FSEIS.

Conclusion NRC Stafi s supplemental review of the environmental impacts of the issuing 20 year operating licenses to Indian Point Unit 2 and Unit 3 is far too narrow and inconsistent with the National Environmental Policy Act and regulations promulgated by the Council on Environmental Quality and NRC. NRC should reopen its NEPA review of the requested operating licenses and conduct a comprehensive site specific analysis of the environmental impacts caused by severe accidents at Indian Point as well as the means and resources to mitigate such impacts.

008-4 CA)

John Sipos Assistant Attorney General State of New York

Appendix A A.2 References 10 CFR 51. Code of Federal Regulations, Title 10, Energy, Part 51, "Environmental protection regulations for domestic licensing and related regulatory functions."

50 CFR 402. Code of Federal Regulations, Title 50, Wildlife and Fisheries, Part 402, "Interagency cooperation-Endangered Species Act of 1973, as amended."

73 FR 46204. U.S. Nuclear Regulatory Commission. The Attorney General of Commonwealth of Massachusetts, The Attorney General of California; Denial of Petitions for Rulemaking. Federal Register 73(154):46204-46213.

[NRC] U.S. Nuclear Regulatory Commission. 1996. Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants. Washington, DC: NRC. NUREG-1437.

May 1996. ADAMS Nos. ML040690705 and ML040690738.

[NRC] U.S. Nuclear Regulatory Commission. 2010. Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3. Washington, DC: NRC. NUREG-1437, Supp. 38.

December 2010. ADAMS Accession No. ML103270072.

[NRC] U.S. Nuclear Regulatory Commission. 2012. Technical Analysis and Support for Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Volume 4 Draft Report for Comment (NUREG-1437, Suppl. 38, Vol. 4) June 2012. 98 pp. ML12257A346.

Price-Anderson Nuclear Industries Indemnity Act of 1957, as amended. 42 U.S.C §2210.

U.S. Court of Appeals for the D.C. Circuit. New York v. NRC, 681F.3rd471. June 8, 2012.

Decision on Petitions for Review of Orders of the Nuclear Regulatory Commission.

A-35

NRC FORM 335 U.S. NUCLEAR REGULATORY COMMISSION

1. REPORT NUMBER (12-2010)

(Assigned by NRC, Add Vol., Supp., Rev.,

NRCMD 3.7 and Addendum Numbers, If any.)

BIBLIOGRAPHIC DATA SHEET NUREG-1437 (See instrucftos on the reverse)

Supplement 38 Vol. 4

2. TITLE AND SUBTITLE

3. DATE REPORT PUBLISHED Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, MONTH YER Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report Supplemental Report June 2013 and Comment Responses

4. FIN OR GRANT NUMBER

5. AUTHOR(S)

6. TYPE OF REPORT See Chapter 6 Technical

7. PERIOD COVERED (Inclusive Dates)

8. PERFORMING ORGANIZATION - NAME AND ADDRESS (If NRC, provide Division, Office or Region, U. S. Nuclear Regulatory Commission, and mailing address; if contractor, provide name and mailing address.)

Division of License Renewal Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

9. SPONSORING ORGANIZATION - NAME AND ADDRESS (If NRC, type "Same as above", if contractor, provide NRC Division, Office or Region, U. S. Nuclear Regulatory Commission, and mailing address.)

Same as above

10. SUPPLEMENTARY NOTES Docket Nos. 50-247 and 50-286

11. ABSTRACT (200 words orlesI)

This Supplement to the final supplemental environmental impact statement (FSEIS) for the proposed license renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3 incorporates new information that the U.S. Nuclear Regulatory Commission (NRC) staff has obtained since the publication of the FSEIS in December 2010.

This supplement includes corrections to impingement and entrainment data presented in the FSEIS, revised conclusions regarding thermal impacts based on newly available thermal plume studies, and an update of the status of the NRC's consultation under Section 7 of the Endangered Species Act with the National Marine Fisheries Service regarding the shortnose sturgeon (Acipenser brevirostrum) and Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus).

12. KEY WORDS/DESCRIPTORS (List words or phrases that will assist researchers Iin locating the report)

13. AVAILABILITY STATEMENT" Indian Point Energy Center NUREG-1437, Supplement 38 unlimited.

Indian Point Indian Point 2':...

14. SECURITY CLASSIFICATION" Indian Point 3 Entergy Nuclear Operations, INC (This page)

Supplement to the Generic Environmental Impact Statement.

unclassified SETS.:.

M

(" s Repond)

GEIS.

unclassified!!:::,::.

National Environmental"Impact Statement 5i. NUMBER OF PAGES:

NEPA License Renewal:

PRICE NRC FORM 335 (12-2010)...;'..

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UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, DC 20555-0001 OFFICIAL BUSINESS

NUREG-1437, Vol. 4 Supplement 38 Final Supplement Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 June 2013