ML12123A473

Jones River Watershed Association and Pilgrim Watch Motion to Reopen, Request for Hearing and Permission to File New Contention in the Above-Captioned License Renewal Proceeding on Violations of the Endangered Species Act with Regard to the

ML12123A473
Person / Time
Site:	Pilgrim
Issue date:	05/02/2012
From:	Anne Bingham, Lampert M, Sheehan M Jones River Watershed Association, Pilgrim Watch
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22390, 50-293-LR, ASLBP 12-917-05-LR-BD01
Download: ML12123A473 (99)

Text

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

_______________________________________

In the Matter of

)

Docket # 50

-293 LR Entergy Nuclear Generation Company )

Entergy Nuclear Operations Inc. )

Pilgrim Nuclear Power Station )

License Renewal Application )

______________________________________)

JONES RIVER WATERSHED ASSOCIATION AND PILGRIM WATCH MOTION TO REOPEN, REQUEST FOR HEARING AND PERMISSION TO FILE NEW CONTENTION IN THE ABOVE

-CAPTIONED LICENSE RENEWAL PROCEEDING ON VIOLATIONS OF THE ENDANGERED SPECIES ACT WITH REGARD TO THE ROSEATE TERN

Filed May 2, 2012

2 TABLE OF CONTENTS I . Executive Summary I I . Statutory Framework and Factual Background A. Factors of 10 C.F.R. 2.309(f)(1)

Specific Statement of Law or Fact: § 2.0309(f)(1)(i)

Law Endangered Species Act National Environmental Policy Act NRC License renewal regulations Facts Roseate tern "may be present" in the vicinity of PNPS Inaccuracies in Entergy's relicensing application Data about roseate terns staging, foraging, feeding, and nesting in the action area. Food Supply and New Information About Water Pollution Brief Explanation of Basis for Contention: § 2.309(f)(1)(ii)

Contention is Within the Scope: § 2.309(f)(1)(iii)

Contention is Material to the NRC's Findings: § 2.309(f)(1)(iv) 2.209(f)(1)(v)

Contention Raises Genuine Dispute: § 2.309(f)(1)(v)(i)

B. Factors of 10 C.F.R. 2.309(f)(2)

III. Motion to Reopen 10 C.F.R. § 2.326 IV. Request for Hearing and Petition for Leave to Intervene 10 C.F.R. 2.309(a) and (d)

Standing Pilgrim Watch Standing JRWA Standing V. Nontimely Filings under 2.309(c

) Good cause Right to be Made a Party Petitioner's Property, Financial and Other Interests Possible Effect of Any Order on the Petitioner's Interest(s)

Other Means for Protecting Petitioners' Interests 3 Extent to Which Petitioners' Interests Will be Represented by Existing Parties Extent to Which Petitioner's Participation Will Broaden the Issues or Delay the Proceedings The Extent to which Petitioner's Participation May Reasonably Be Expected to Assist in Developing a Sound Record VI. Discretionary Intervention under 10 C.F.R. § 2.309(e)

V II. Conclusion

4 Introduction Pursuant to 10 C.F.R§ 2.309 and § 2.326, Petitioners Jones River Watershed Association, Inc. (JRWA) and Pilgrim Watch (PW) hereby move to reopen the record to file a new contention and request a hearing on violations of the Endangered Species Act , (ESA), 16 U.S.C. §§ 1531 et seq., and National Environmental Policy Act , (NEPA), 42 U.S.C. §§ 4321 et seq. Petitioners show that new material information shows a significant potential for adverse effects on the federally-endangered roseate tern (sterna dougallii) during the relicensing period 1 and that other material and relevant data has been ignored and/or withheld from the public.

I . Executive Summary This filing is only the latest exposure of a litany of defects in every aspect of the environmental evaluation of PNPS relicensing. Petitioners have previously shown in this proceeding that Entergy's Clean Water Act NPDES permit expired 16 years ago, the NRC staff failed to follow the Endangered Species Act for 11 species under the jurisdiction of the National Marine Fisheries Service, including North Atlantic right whales recently documented .5 miles from PNPS and in the PNPS thermal plume area, and that compliance with rules for protecting Essential Fish Habitat have been shunted to an NPDES permit process that will not occur for at least a year.

2 Against this background of egregious failures with regard to duties under a host of environmental laws by every federal agency involved, Petitioners seek to reopen the

1 Affidavit of Ian Christopher Thomas Nisbet, PhD. (Nisbet Aff.) ¶ 21

. 2 See, e.g., Petitioners' March 8, 2012 filing in this proceeding.

5 hearing pursuant to 10 C.F.R. § 2.326, request a hearing under 10 C.F.R.§2.309(a), and show that they meet the non

-timely filing standards 10 C.F.R. § 2.309(c), the standing requirements of §2.309(d) and the provisions for discretionary intervention under 10 C.F.R. §2.309(e). They also show that the new contention sought to be admitted meets the standards of 10 C.F.R. § 2.309(f).

Petitioners' motion to reopen need not meet the timeliness requirement of § 2.326(a)(1) because its contention, by definition, raises an "exceptionally grave" issue: the significant potential for adverse effects on federally endangered roseate terns during the relicensing period. A balancing of the factors under § 2.309(c) and (e) for nontimely filings and discretionary intervention tips unequivocally in Petitioners' favor because of the exceptionally grave nature of the issues raised by the contention, as fully discussed below. Moreover, Entergy's 2011 violations of the Clean Water Act (CWA), the withholding of 2012 CWA data from Petitioners, Entergy's refusal to release a significant document, which precipitated a FOIA appeal on March 28, 2012, and new data about roseate terns in the PNPS vicinity, overcome any timeliness issues.

Petitioners proffer evidence of procedural and substantive violations of the ESA with regard to the roseate tern by showing: (1) that the NRC staff was required to conduct a biological assessment pursuant to ESA § 7, 16 U.S.C. § 1536(c)(1), and it did not, (2) that Entergy's license application is inaccurate and incomplete in material aspects regarding the roseate tern, (3) that the U.S. Fish and Wildlife Service (USFWS) unlawfully ignored the requirement for a biological assessment and without a scientific basis declared the roseate tern to be "probably transient," contrary to widely known and available data, (4) that there is significant potential for adverse effects on roseate terns 6 during the relicensing period, (5) that the NRC staff environmental impact statement contradicts the USFWS finding that the roseate tern is present at PNPS but is "probably transitory," rendering the statement inadequate, and (6) that therefore, the NRC staff

should be ordered to conduct a biological assessment on the Roseate tern and to supplement the environmental impact statement with this data.

As shown below, Entergy and the NRC are estopped from arguing that this filing is untimely, and in any event, 10 C.F.R. § 2.309 provides that "an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented." Given the "significant potential for adverse effects on roseate terns" during the relicensing period, and importance that Congress and the U.S Supreme Court have placed on strict compliance with ESA procedural provisions, the NRC, Entergy, and USFWS ESA violations of the ESA and NEPA give rise to an "exceptionally grave issue." Moreover, even if timeliness is considered, new and significant information warrants reopening, not least of which is Entergy's refusal to provide information both cited and relied in the PNPS EIS (the Tetra Tech and DMR reports) and a glaring hole in the availability of data about water quality, which is related to effects on the roseate tern.

I I . Statutory Framework and Factual Background A. Factors of 10 C.F.R. 2.309(f)(1)

Under 10 C.F.R. § 2.309(f)(1), a request for hearing or petition for leave to intervene "must set forth with particularity the contentions sought to be raised."

Petitioners request a hearing on a new contention pursuant to 10 C.F.R. § 2.309, to show procedural and substantive violations of ESA, a material defect in Entergy's 7 license application regarding the Roseate tern, and that the Final Supplemental Environmental Impact Statement for Pilgrim Nuclear Power Station (PNPS), dated July 2007, NUREG

-1437, Supplement 29 (PNPS EIS) should be supplemented.

Petitioners proffer evidence to show that Entergy, the USFWS, and the NRC staff ignored widely available scientific data available in 2006 and 2007, and that new scientific information developed since 2006 about the roseate tern warrants reopening the record pursuant to the ESA and NEPA.

Specific Statement of Law or Fact: § 2.0309(f)(1)(i)

The following is a specific statement of the issues of law and fact to be raised or controverted. 10 C.F.R. § 2.0309(f)(1)(i).

Endangered Species Act The ESA governs the protection of endangered and threatened species and critical habitat. In pertinent part it states, [e]ach Federal agency shall, in consultation with-the Secretary [of the Interior or Commerce as appropriate], insure that any such action authorized, funded, or carried out by such agency-is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of such species which is determined-to be critical.

ESA § 7, 16 U.S.C. § 1536(a)(2)(2010). The U.S. Fish and Wildlife Service (USFWS) has ESA jurisdiction over the Roseate tern, which and was identified in 2005 by Entergy as a species "known to occur in the general vicinity of the PNPS site. See, forth in Facts, below. 3 3There is no dispute that the Roseate tern "may be present" in the action area for purposes of the ESA.

In a letter to USFWS dated Feb. 2, 2005, Entergy states that the Roseate tern is "known to occur in the

8 When an ESA

- listed species "may be present," the action agency "shall conduct a biological assessment for the purpose of identifying any endangered species or threatened species which is likely to be affected by the action." ESA § 7, 16 U.S.C. § 1536(c)(1).

Thomas v. Peterson, 753 F. 2d 754 (9 th Cir. 1985); City of Sausalito v. O'Neill

, 386 F. 2d 1186, 1215 (9 th Cir.). The purpose of a biological assessment is to "facilitate compliance with ESA §7(a)(2). The NRC staff itself has adopted and followed the legal precedent requiring a biological assessment when an endangered species "may be present." In a 2011 filing in a relicensing proceeding, the NRC staff stated, As part of its compliance with NEPA and 10 C.F.R. Part 51, the NRC Staff engages in consultation with other Federal agencies, as appropriate, under Section 7 of the ESA. The ESA requires federal agencies "to insure that actions authorized, funded or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species

-.When the possible effects of an agency action, such as a license renewal, affect marine species, the ESA requires consultation with NMFS, Under the Section 7 consultation requirement, the first task of an agency is to request information from NMFS on whether a listed or proposed species or a designated or proposed critical habitat is present in the area,14 If NMFS advises that an endangered or proposed species may be present, the agency must conduct a biological assessment ("BA")

." (emphasis supplied)4

general vicinity of the PNPS site,"(emphasis supplied).

The PNPS EIS identifies the Roseate tern "potentially occurring the PNPS vicinity

," p. 2-92; it is Listed in Table 2

-5 and identified in footnote 3 as "endangered for the northeast U.S. nesting population"; and as "potentially occurring in the PNPS vicinity." p. 4-64, Section 4

-64, 4.6.2 states, "The roseate tern also is known to occur along Plymouth Beach just north of PNPS (FWS 2006), and it may pass over the PNPS site during migration (NHESP 1988)." Therefore, it "may be present" in the vicinity of PNPS.

4NRC Staff Answer to Riverkeeper, Inc.'s Motion for Leave to File A New Contention, and New Contention EC-8 Concerning NRC Staff's Final Supplemental Environmental Impact Statemen t , May 7, 2011. NRC Ascension ML110670555.

9 A biological assessment "shall evaluate the potential effects of the action on listed -species and determine whether any such species or habitat are likely to be adversely affected by the action and is used in determining whether formal consultation or a conference is necessary." 50 C.F.R. § 402.12 (a), (k). (emphasis supplied) 5 The NRC's regulations expressly state "consultation with appropriate agencies would be needed at the time of license renewal to determine whether threatened or endangered species are present and whether they would be adversely affected."

6 The ESA contains an express Congressional directive that potential effects on endangered species are to be given the highest level of scrutiny by federal action agencies. In the leading ESA case, Tennessee Valley Authority v. Hill, 437 U.S. 154, 173 (1978), the U.S. Supreme Court stated, One would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or mod ification of habitat of such species . .

. ." 16 U. S. C. § 1536 (1976 ed.). (Emphasis added.) This language a dmits of no exception.

5 The ESA regulations set forth five factors to considered in a biological assessment. 50 C.F.R. § 402.12(f)(1)

-(5). Although the contents of the biological assessment are discretionary and depend on the nature of the Federal action, it must be based on species and habitat data sufficient to make an "informed" assessment of the impacts of the Federal agency action. Bob Marshall Alliance v. Watt, 685 F. Supp. 1514, (D. Mt. 1986), aff'd in part and rev'd in part and rev'd in part on other grounds, 852 F.2d 1223 (9th Cir.) cert. den. 489 U.S. 1066 (1989); See e. g. Sierra Club v. Flowers, 423 F. Supp. 2d 1273 (S.D. Fl. 2006) (it is the agency's responsibility to explain its decision under the ESA and-to do so with a reasoned analysis), vacated, remanded on other grounds, 526 F.3d 1353 (2008); aff'd Sierra Club v. Van Antwerp , 362 Fed. Appx. 100 (11 th Cir. Fl. 2010). Once completed by the action agency, a biological assessment must be submitted to USFWS for concurrence. Thus, in both the formal and informal consultation processes, USFWS must provide written concurrence with the action agency finding. 50 C.F.R. § 402.12(j), 402.13, 402.14.

6 10 C.F.R. Part 51, Table B

-1 of Appendix B to Subpart A. (emphasis supplied

).

10 -As it was finally passed, the Endangered Species Act of 1973 represented the most comprehensive legislation for the preservation of endangered species ever e n acted by any nation. Its stated purposes were "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be co nserved," and "to provide a program for the conservation of such . . . species . . .

." .In furtherance of these goals, Congress expressly stated in § 2 (c) that "all Federal departments and agencies shall seek to conserve endangered species and threatened species . . . ." Lest there be any ambiguity as to the meaning of this statutory dire ctive, the Act specifically defined "conserve" as meaning "to use and the use of all methods and procedures which are necessary to bring any endangered species or threa tened species to the point at which the measures provided pursuant to this chapter are no longer necessary." Aside from § 7, other provisions indicated the seriousness with which Congress viewed this issue: Virtually all dealings with endangered species, including taking, possession, tran sportation, and sale, were prohibited, except in extremely narrow circumstances-The Secretary was also given extensive power to develop regulations and programs for the preservation of enda ngered and threatened species." (citations and brackets omitted)

Cited in, e.g. Pacific Coast Federation of Fishermen's Associations v. U.S. Bureau of Reclamation, 138 F. Supp 2d 1228, 1240 (N.D.Calif. 2001); Heartwood, Inc. v. Agpaoa , 611 F.Supp. 2d 675, 682 (E. Dist. Kent. 2009).

The ESA contains both substantive and procedural provisions. The substantive provisions relate to ensuring that, in this case, PNPS relicensing is "not likely to jeopardize the continued existence of the roseate tern. 16 U.S.C. §1536(a)(2). As explained by the 9 th Circuit in Thomas v. Peterson, 753 F. 2d 754 , 763 (9 th Cir. 1985), The Act prescribes a three-step process to ensure compliance with its substantive provisions by federal agencies. Each of the first two steps serves a screening function to determine if the successive steps are required. The steps are:

(1) An agency proposing to take an action must inquire of the Fish & Wildlife Service (F & WS) whether any threatened or endangered species "may be present" in the area of the proposed action. See 16 U.S.C. § 1536(c)(1)

. (2) If the answer is affirmative, the agency must prepare a "biological assessment" to determine whether such species "is likely to be affected" by the 11 action. Id. The biological assessment may be part of an environmental impact statement or environmental assessment. Id. (3) If the assessment determines that a threatened or endangered species "is likely to be affected," the agency must formally consult with the F & WS.

Id. § 1536(a)(2)

. The formal consultation results in a "biological opinion" issued by the F & WS. See id. § 1536(b). If the biological opinion concludes that the proposed action would jeopardize the species or destroy or adversely modify critical habitat, see id. § 1536(a)(2)

, then the action may not go forward unless the F & WS can suggest an alternative that avoids such jeopardization, destruction, or adverse modification. Id. § 1536(b)(3)(A)

. If the opinion concludes that the action will not violate the Act, the F & WS may still require measures to minimize its impact. Id. § 1536(b)(4)(ii)

-(iii). Where there is a procedural violation of the ESA, the remedy must be an injunction of the project pending compliance with the ESA.

The procedural requirements of the ESA are analogous to those of NEPA: under NEPA, agencies are required to evaluate the environmental impact of federal projects "significantly affecting the quality of the human environment,"

42 U.S.C. § 4332(2)(C); under the ESA, agencies are required to assess the effect on endangered species of projects in areas where such species may be present.

16 U.S.C. § 1536(c)

. A failure to prepare a biological assessment is comparable to a failure to prepare an environmental impact statement.

(emphasis supplied)

Further, the Thomas court further stated, "Irreparable damage is presumed to flow from a failure properly to evaluate the environmental impact of a major federal action.

We see no reason that the same principle should not apply to procedural violations of the ESA." Id. at 763 (citations omitted).

7 The procedural steps set forth in the ESA are the means by which compliance with substantive provisions is assured. "If a project is allowed to proceed without substantial compliance with those procedural requirements, there can be no assurance that a violation of the ESA's substantive provisions will not result. The latter, of course, is

7 While consultation with NMFS is ongoing, ESA § 7(d) prohibits the Federal agency or project applicant from making an "irreversible or irretrievable" commitment of resources "which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative" to the agency action. 1536 U.S.C. §1536(d); 50 C.F.R. 402.09.

12 impermissible.

" Thomas, citing TVA v. Hill , supra. The Thomas court further stated, Congress has assigned to the agencies and to the Fish & Wildlife Service the responsibility for evaluation of the impact of agency actions on endangered species, and has prescribed procedures for such evaluation. Only by following the procedures can proper evaluations be made. It is not the responsibility of the plaintiffs to prove, nor the function of the courts to judge, the effect of a proposed

action on an endangered species when proper procedures have not been followed.

ESA § 7 regulations require specific documentation of compliance with ESA process es and standards.

As shown below, proper procedures have not been followed, and the ESA has been violated.

National Environmental Policy Act The fundamental purposes of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. are: (1) to guarantee that the government takes a "hard look" at all of the environmental consequences of proposed federal actions before the actions occur, Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); and (2) to "guarantee[] that the relevant information will be made available to the larger audience that may also play a role in both the decision making process and the implementation of that decision," id. at 349. A Federal agency's continuing duty to take a "hard look" at the environmental effects of their actions requires that they consider and evaluate, make a reasoned determination about the significance of this new information

, and prepare supplemental NEPA documentation accordingly. Warm Springs Task Force v. Gribble, 621 F.2d 1017, 1023-24 (9 th Cir. 1980); Stop H-3 Association v. Dole, 740 F.2d 1442, 1463

-64 (9th Cir. 1984). Federal agencies must supplement their NEPA documentation when "there are 13 significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1509(c)(1)(ii). The need to supplement under NEPA when there is new and significant information is also found throughout the NRC regulations. See 10 C.F.R. §§ 51.92 (a)(2), 51.50(c)(iii), 51.53(b), 51.53(c )(3)(iv).

NEPA demands that federal agencies "insure the professional integrity, including the scientific integrity, of the discussions and analyses" included in an EIS, 40 C.F.R. § 1502.24, and disclose "all major points of view on the environmental impacts" including any "responsible opposing view." 40 C.F.R. §§ 1502.9(a), (b). A NEPA EI S must contain a "detailed statement . . . on . . . alternatives to the proposed action." 42 U.S.C. § 4332(C)(iii). Courts have found that an EIS that fails to disclose and respond to expert opinions concerning the hazards of a proposed action, particularly those opinions of the agency's own experts, are "fatally deficient" and run contrary to NEPA's "hard look" requirement.

The NEPA alternatives analysis should address "the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for the choice among options by the decision maker and the public." 40 C.F.R. § 1502.14. This analysis must "rigorously explore and objectively evaluate all reasonable alternatives." 40 C.F.R. § 1502.14(a).

8 8 Agencies must consider three types of alternatives, which include a no action alternative, other reasonable courses of actions, and mitigation measures not in the proposed action. 40 C.F.R. § 1508.25. The purpose of this section is "to insist that no major federal project should be undertaken without intense consideration of other more ecologically sound courses of action, including shelving the entire project, or of accomplishing the same result by entirely different means." Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123, 1135 (5th Cir. 1974). "The existence of a viable but unexamined alternative 14 NRC regulations provide that impacts on endangered species from relicensing is a "Category 2" issue requiring site-specific review under NEPA by the NRC during individual license proceedings.

9NRC License renewal regulations The regulations make clear that ESA consultation is necessary for NRC staff to make informed recommendations on the propriety of relicensing.

NRC regulations require an applicant for relicensing to provide information that is "complete and accurate in all material respects." The regulations state, "(a) Information provided to the Commission by an applicant for a renewed license or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained by the applicant must be complete and accurate in all material respects."

10 CFR § 54.13.10

renders an [EIS]inadequate." Natural Resources Defense Council v. U.S. Forest Service, 421 F.3d 797, 813 (9th Cir. 2005) (quoting Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985)). As shown below, Entergy's licensing application is incomplete and inaccurate information in material respects with regard to the roseate tern. Entergy knew or had reason to know its statements about the foraging, feeding, migration, nesting, and staging of the Roseate tern in the action area affected by PNPS relicensing were incomplete and inaccurate, and ignored well

-known, readily available scientific information about the Tern's presence in the action area.

9 See 10 C.F.R. Part 51, Table B

-1 of Appendix B to Subpart A; NUREG

-1437, 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 of potential impacts to threatened and endangered species. This is a Category 2 issue."

10 Under 10 C.F.R. 13.3(b)

-(e), an applicant for relicensing is liable for civil penalties for making a written statement that it knew or had reason to know was false, fictitious or fraudulent. No specific intent is required.

15 Facts Roseate tern "may be present" in the vicinity of PNPS Entergy admits that the Roseate tern "may be present" in the "general vicinity of the PNPS site. 16 U.S.C. s 1536(c)(1). In a letter to USFWS, dated February 3, 2005 , Entergy stated, Several listed terrestrial species are known to occur in the general vicinity of the PNPS site, however, and cannot be ruled out as occasional visitors to the PNPS site and environs-.These include the roseate tern.11 By letter dated Mar. 9, 2005, the USFWS replied to the Entergy Feb. 3, 2003 letter and stated the roseate terns "are known to occur on Plymouth beach just north of PNPS-but [a]ccording to our records, are not known to frequent the immediate vicinity of PNPS and therefore, the presence of these species near the power station is probably transient in nature-."12 There can be no reasonable dispute that Roseate terns "may be present" at PNPS, given that Entergy describes them as "known to occur in the vicinity of PNPS" and the

11 See also, Entergy License Renewal Application, Appendix E, Environmental Report (ER)(roseate tern "known to occur in the general vicinity of the PNPS site, however, and cannot be ruled out as occasional visitors to the PNPS site-") ER, p. 2

-9. See also, PNPS EIS p. 4

-64 ("The roseate tern also is known to occur along Plymouth Beach just north of PNPS (FWS 2006), and it may pass over the PNPS site during migration (NHESP 1988). The roseate te rn population in Massachusetts has been slowly increasing, from 1600 breeding pairs in 1978 to 1810 breeding pairs in 1999 (NHESP 2005

). (The 2005 Entergy and USFWS letters are in Attachment B to Entergy's NRC relicensing application, available at:

http://www.nrc.gov/reactors/operating/licensing/renewal/applications/pilgrim.html, and t he PNPS EIS is at: http://www.nrc.gov/reading

-rm/doc-collections/nuregs/staff/sr1437/supplement29/index.html, and the 2006 USFWS letter is in the PNPS EIS.

12 The USFWS letter of March 9, 2005 states, "-.. roseate terms are known to occur on Plymouth beach just north of PNPS but "[a]ccording to our records, none of the above

-listed species [including the roseate tern and bald eagle] are known to frequent the immediate vicinity of PNPS and, therefore, the presence of these species near the power station is probably transient in nature-Since no expansion of existing facilities is planned and no additional land disturbance is anticipated, we concur with your determination that license renewal for PNPS is not likely to adversely affect federally

-listed species-."

USFWS confirmed this statement in a May 23, 2006 letter to the NRC, contained in the PNPS EIS.

16 USFWS describes them as "known to occur on Plymouth beach just north of PNPS-" That they may be "probably transient" does not mean they are "not present" in the action area. Moreover, USFWS "probably transient" statement was incorrect at the time it was made. Although USFWS stated "according to our records" the roseate tern was not known to "frequent the immediate vicinity of PNPS," USFWS should have known that whatever records it consulted were incomplete. Nisbet Aff. ¶ 17.

Inaccuracies in Entergy's relicensing application Entergy's license application contains the following materially inaccurate and incomplete statement:

"Although suitable nesting habitat has not been identified at PNPS, migrating terns may move through the site in late spring (en route to nesting areas in Maine and Nova Scotia) and late summer (en route to wintering areas in the West Indies and Latin America)."

ER, p. 2-10. In 2005, Entergy and USFWS knew or should have known that the statement "migrating terns may move the site in the late spring-and summer-" was inaccurate. Nisbet Aff. ¶ 16. In 2005, it was known in the scientific community that roseate tern s occurred in significant numbers at times at Long Point Beach (LPB), in Plymouth, Massachusetts in the staging period in August and September

- including late summer, but not exclusively on migration en route to wintering areas, as Entergy claimed, and which USFWS accepted.

As to nesting, it was also known in the scientific community in 2005 that although roseate terns were not nesting that year at LPB, it was known that they had done so in the recent past and hence were likely to do so again during the period proposed for relicensing. Nisbet Aff. ¶ 16. Thus, Entergy's claim that roseate terns "merely move through the site in late spring on their way north and south" is erroneous: in fact, in 2005 17 it was known that the terns nested, foraged, and staged in the vicinity of PNPS, and their presence could in no way be considered "probably transient" as the USFWS claimed.

Ironically, some of the world's leading roseate tern biologists are headquartered at Manomet Center for Conservation Sciences (MCCS), located about three miles from PNPS. Instead of consulting with these experts who are on their doorstep, Nesbit Aff. ¶ 16, Entergy omitted material facts that it had a duty to include in its ER, dismissed the roseate terns as "merely moving through the site" in the spring and fall, and concluded there could be "no effects" on the Roseate tern for ESA purposes. See, Entergy Feb. 3, 2005 letter to USFWS. The USFWS abdicated its responsibilities under the ESA and went along with this charade Data about roseate terns staging, foraging, feeding, and nesting in the action area. PNPS is located about four miles from the location on LPB where roseate terns breed in May through July, and about four miles from the locations on LPB and Brown's Bank where roseate terns stage and roost in large numbers in July through September.

PNPS is well within the foraging range of roseate terns from both areas, and also has to be passed by roseate terns from those areas on their way to and from feeding areas down the coast to the southeast. Nesbit Aff. ¶ 7.

The USFWS statement that roseate terns are not "known to frequent the immediate vicinity of PNPS and therefore, the presence of these species near the power station is probably transient in nature" flies in the face of data that USFWS itself has overseen and been responsible for creating, including species recovery plans for roseate terns, that show roseate terns nesting and staging within four miles of PNPS at LPB and 18 Brown's Bank. Roseate terns have nested at LPB since at least the 1950s. Nisbet Aff. ¶ 3. As the agency responsible for the recovery of the roseate tern population, USFWS had information in its records and should have known that the roseate tern was likely to nest at LBP during the period of relicensing, and indeed that restoration of this colony fell within its own goals for recovery of the species. Nesbit Aff. ¶ 17. The USFWS was also aware of the Trull et al (1999) paper, which recorded staging of roseate terns at LPB. Id. ¶ 18.

In a violation of procedure, the USFWS "concurred" with Entergy's finding that PNPS was 'not likely to adversely effect" the roseate tern

- turning the entire ESA process on its head. See, USFWS March, 2005 letter. The concurrence finding should have been made, in this instance, only after the action agency completed a biological assessment

- not after a 3 page self

-serving letter from the regulated industry whose motivation to is to find no endangered species anywhere near PNPS, and in finding no effects whatever.

Since 2006, more information has become available and demonstrates a much larger potential for adverse effects than could have been inferred in 2006. Nisbet Aff. ¶

20. Since 2008, a biologist at MCCS has observed birds regularly in the area of LPB (two to four miles from PNPS), at Manomet Point (2 miles from PNPS) and at MCCS (less than three miles from PNPS). Besides recording large numbers of roseate terns at LBP, the biologist records 51 individual roseate terns on 18 occasions at White Horse Beach, Manomet Point, or MCCS, with a maximum of 10 birds at MCCS on August 28, 2011.

These recent findings indicate that the biologist can expect to see roseate terns on any day 19 in May through June or August. His findings also indicate that he has also regularly observed large numbers of roseate terns staging at LPB. Nisbet Aff. ¶ 14.

Since 2007, intensified efforts by the Town of Plymouth to control predators on LPB have encouraged more terns to nest there, and one pair probably nested there in 2008, increased to three pairs in 2011.

Prior to 1999, LBP was known to be used by staging roseate terns, but was thought to be a relatively minor site, with a maximum of 240 birds in August 1988. Nisbet Aff. ¶ 4. Studies done in 2007 to 2009 found that LPB had become a major staging site, with a high count of 4,776 birds (about half the North American population) on September 6, 2007. LPB is now a major site for staging roseate terns, supporting at times up to half the entire regional population.13 Roseate terns usually forage within 10 to 20 miles of their nesting sites during the breeding season, but range more widely in the post

-breeding period. They usually forage over waters less than 15 feet deep and within 1

-2 miles of the coast. Nisbet Aff. ¶ 12. They often concentrate over shallow sand bars, in tide rips where tidal currents flow through narrow channels or around headlands, or other locations where turbulent currents bring small fish towards the surface. Nisbet Aff. ¶ 12.

Nisbet Aff. ¶s 11, 20. Depending on the level of disturbance at LBP, terns often rested and roosted on offshore sand banks, including Brown's Bank. Nisbet Aff. ¶ 7. PNPS is well within the foraging range of roseate terns from both areas, and also has to be passed by roseate terns from those areas on their way to and from feeding areas

13 "Staging" means to gather, rest and roost. Staging is an important period in the life cycle of the roseate tern because the young are then learning to feed independently and the birds molt their feathers and lay down energy reserves for southward migration in September. Nisbet Aff. ¶ 10.

20 down the coast to the southeast. Nisbet Aff. ¶ 13. PNPS is located along a rocky coast and the water depth in the near shore averages about 12 feet. PNPS EIS, Section 2.2.5.1,

p. 2-22. There are two breakwaters forming the intake channel at PNPS.

Id. at 2.2.2. The turbulent water around the two breakwaters, turbulence created by regular and periodic cooling water discharges, and the tide rips off Rocky Point (about one quarter mile from PNPS) and Manomet Point (about two miles to the southeast) are expected to be prime locations for foraging roseate terns. Id. PNPS is thus essentially an attractive nuisance for the federally endangered roseate tern.

Food Supply and New Information About Water Pollution At PNPS Roseate terns feed on small marine fish. Nesbit Aff. ¶ 7. The main prey species of roseate terns in New England are A merican sand lance (sammodytes americanus), hake , and Atlanti c herring (clupea harengus

).14 14 Carribean Roseate tern and North Atlantic Roseate tern , 5-Year Review: Summary and Evaluation , USFWS, Sept. 2010, pp. 50, 51, 59.

These three fish species, as well as other herring species like the river herring, are regularly impinged and entrained at PNPS in large numbers, and subject to its point source an d non-point source pollutant discharges. "Juveniles and/or adults [of Atlantic herring] have been consistently collected in the PNPS impingement sampling program. Over the last 25 years they have been one of the numerically dominant impinged species." PNPS EIS, p. 2

-36 , p. 2-49 and Table 4

-4 (in 2005 there were 9,860,824 Atlantic herring larvae entrained); p. E

-57 (there have been "significant entrainment events involving Atlantic herring). Eggs and larvae of the red http://ecos.fws.gov/docs/five_year_review/doc3588.pdf Atlantic herring, hake, and Atlantic sand lance as having designated essential fish habitat under the Magnuson Stevens Fisheries Conservation Act in the vicinity of PNPS PNPS EIS, p. 2

-33.Yet, the NRC has not completed an EFH consultation but has attempted to put that off into the indefinite future, at such time as U.S. EPA renews the PNPS NPDES permit, which is now overdue by 16 years. The NPDES permit review is not scheduled to be completed for at least one year from now, if then.

21 hake and silver hake are entrained at PNPS, and juveniles and adults are impinged. PNPS EIS, p. 2-56; p. 2-60. Pollution has been identified a "significant threat to roseate terns

.15 Industrial discharges of hazardous substances, including metals and PCBs are cited as a threat to the roseate tern.16 A partial list of the pollutant discharges from PNPS include radioactive effluent, chlorine, biocides, metals, and corrosion inhibitor, as well as thermal releases.

These thermal releases include superheated backwash operations when 120 F effluent is discharged to Cape Cod Bay. PNPS EIS, Table 2

-2. There is a glaring lack of data about the quantities and identity of pollutants released and to be released, how these chemicals reformulate once they are released, and how their toxicity may be affected by Entergy's thermal plume.17 The NRC generic EIS identifies the potential negative environmental impacts of discharges of chlorine and other biocides, metals such as copper, zinc, chromium from corroding pipes and tubes.

The NRC staff admits that there has been no regular testing for water quality, and only four samples taken of sediments, PNPS EIS § 2.2.5.2, and the Clean Water Act NPDES permit expired 16 years ago.

Affidavit of E. Pine duBois (duBois Aff.)

18 15 Carribean Roseate tern and North Atlantic Roseate tern , 5-Year Review: Summary and Evaluation , USFWS, Sept. 2010, p. 40.

Since PNPS uses a corrosion inhibitor, and had to almost entirely replace corroded pipes in about 1984, corrosion of metal piping is obviously an http://ecos.fws.gov/docs/five_year_review/doc3588.pdf

p. 62. 16 Carribean Roseate tern and North Atlantic Roseate tern , 5-Year Review: Summary and Evaluation , USFWS, Sept. 2010, p. 60-61. 17 See, April 24, 2012 letter from EcoLaw to NMFS

, Exhibit 1. 18 10 CFR Part 51, Subpart A, Appendix B, Table 1

-B 22 issue at the facility. Chemical pollution of the environment from nuclear station effluent discharges to water bodies is also discussed in EPA's "§309 Reviewers Guidance for Nuclear Power Plant Environmental Impact Statements."19 Recent data from EPA's website indicates that for 5 of the last 12 quarters Entergy has been out of compliance its NPDES permit.

Among other things, this Guidance document explicitly states that nuclear power plant effluent usually contains chromium. P.6

-30. There is no analysis in the PNPS EIS of whether chromium is discharged from PNPS.

20 Petitioners have been denied access to the most recent (Jan.

-April, 2012 DMRs) so there is no way to tell whether these violations are continuing to occur. (Petitioners have requested the DMRs from Entergy and from EPA. Entergy refuses to post the DMRs electronically, and EPA has not responded to Petitioners' requests.)

Neither Entergy nor USFWS appears to have considered the potential for adverse effects on roseate terns or their fish prey by the pollutants discharged from PNPS, including the potential for adverse effects mediated through effect o f the food supply of roseate terms over a larger area, even though PNPS continually kills large numbers of the

19 Sept. 2008, EPA Publication No. 316

-X-08-001. 20 There have been 5 violations of the chlorine limit, in the last 12 quarters:

Chlorine violations at Outfall 010:

Jan.-March 2010

-exeeded by 3%

Oct.-Dec. 2012-exceeded by 140%

April-June 2011-exceeded by 3%

July-Sept. 2011

-exceeded by 15%

Chlorine violations at Outfall 001

Oct. to Dec. 2011-exceeded by 40%

Information from EPA website:

http://www.epa

-echo.gov/cgi

-bin/get1cReport.cgi?tool=echo&IDNumber=110000736810

23 fish relied on by roseate terns. Nisbet Aff. ¶ 7, 19. This fact, combined with the lack of water quality data in the PNPS EIS and the failure of both Entergy and the regulatory agencies to provide access to data about the types and quantities of metals and other pollutants beyond chlorine discharged from PNPS, shows that the ESA has been substantively violated by the failure to evaluate the pollution impacts on roseate terns and their fish prey.

Entergy claims that PNPS relicensing will have "no effects," are in part are based on a report by its consultant, ENSR, done in the year 2000 (12 years ago) that purports to show no "adverse impact on the integrity of Cape Cod fish and shellfish populations-."21 Although it is cited in the PNPS EIS, and referred to by Entergy it its license application, this report was not made available to the public until mid-April 2012 , about two weeks ago, following repeated requests from JRWA's counsel.

This document is material to the claims by Entergy and the USFWS that relicensing will have "no effect" on the roseate tern because it relates directly to the future food supply for the roseate tern and the nature, volume, and timing of pollutant discharges. See, e.g., ENSR 2000 report, Section 4.2.7.14 (Atlantic herring is a significant part of the diet of many-piscivorous birds." ) It discusses impingement and entrainment of other species, the temperature of water discharges and the thermal plume, and the impact of the cooling water system. See, Sections 4.0 through 6.0.22 21 This report was done for purposes of demonstrating compliance with the Clean Water Act 316(a) and (b) requirements for thermal discharges and CWIS, but relates to the ESA because it recommends that PNPS continue operating its once through cooling system that kills the food supply for roseate terns, and discharges pollution that may impact the terns.

22 U.S. EPA has not accepted the conclusions in the 12

-year old ENSR report, and even the PNPS EIS states, "EPA Region 1, in discussions with the NRC staff, indicated that there was some debate over the conclusions of the report." PNPS EIS, p. 4

-21. Mass CZM staff comments on the ENSR 2000 report 24 Even though it is relevant to PNPS relicensing and ESA issues, EPA refuses to release to the public the 2001 Tetra Tech report done by an EPA contractor, reviewing the ENSR 2000 report. Petitioners have filed a FOIA appeal with EPA regarding this report. Exhibit 1 hereto.

All of these facts show that the assumptions and conclusions in Entergy's ER, its 2005 letter to USFWS, the 2005 USFWS reply and 2006 confirmatory letter, are inaccurate and incomplete, and that significant new information relevant to effects on roseate terns should be added to the record.

Brief Explanation of Basis for Contention: § 2.309(f)(1)(ii)

Petitioner hereby offers the following "brief explanation of the basis" for its Contention. Petitioners proffer new evidence to show a procedural violation by the NRC staff of the ESA in failing to conduct a biological assessment, and to show that substantive violations by Entergy, the NRC and the USFWS by blatantly ignoring relevant, significant data commercially available in 2006.

Entergy has failed to ensure that its relicensing application is complete and accurate in all material respects. New and

forcefully states the 2000 ENSR CWA 316 report failed to demonstrate that MCZM standards were met

. For example, the letter states, In 1997 and 1998, Entergy killed almost "40% of the annual total recreational and commercial catch" of winter flounder.

"-the Demonstration Report does not adequately support the conclusion of no significant impact to the species inhabiting the waters surrounding Entergy-Pilgrim Station."

"-at least one modeling study predicts that hundreds of acres of Cape Cod Bay may increase by one degree Celsius or more due to thermal loading from the discharge. The Demonstration Report does not provide adequate evidence to determine how a temperature increase of just a few degrees may affect the development and survivorship of eggs and larvae or how a temperature increase may affect the future fecundity of adults exposed to the discharge plume in Cape Cod Bay."

"-it has yet to be determined how large single

-day losses of these important prey species [e.g. schooling species] affect food web dynamics in the region of Cape Cod Bay near the Entergy

-Pilgrim Station."

"Of most concern is the entrainment of eggs and planktonic larvae by the cooling water intake structures."

25 significant information relating to the foraging, feeding, nesting, migration and staging of Roseate terns shows that the USFWS conclusion of "not likely to adversely effect" was defective at the time it was made, and the new and significant information shows that the conclusion does not withstand scrutiny.

The NRC has a mandatory duty to follow the ESA § 7 and has incorporated this duty into its own NEPA procedures. Until the § 7 process is completed, the NRC cannot meet its obligation to "insure" that the relicensing will not "jeopardize" the species and/or habitat.

Thomas , supra. The law requires a biological assessment where a listed species "may be present." The NRC staff did not do a biological assessment for the roseate tern.23 Contention is Within the Scope: § 2.309(f)(1)(iii)

The contention is within the scope of the PNPS relicensing proceeding because compliance with the ESA is a prerequisite to relicensing, as set forth in the statute itself, regulations, and NRC's own regulations and Practice Manual. See, Law section, supra. Contention is Material to the NRC's Findings: § 2.309(f)(1)(iv)

There can be no dispute that the issue of procedural and substantive compliance with the ESA "is material to the findings the NRC must make to support the action that is

23 Until the ESA process is complete, ESA § 7(d) prohibits the Federal agency or project applicant from making an "irreversible or irretrievable" commitment of resources "which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative" to the agency action. ESA Section 7(d); 1536 U.S.C. §1536(d); 50 C.F.R. 402.09. Entergy admits that "continued operation of PNPS for the period of extended operation [i.e. during the license renewal period] will result in irreversible and irretrievable resource commitments-."

Entergy ER § 6.4.2. Therefore, until the § 7 consultation is completed and the PNPS EIS properly supplemented, PNPS cannot be relicensed. Otherwise, there would be an "irreversible or irretrievable" commitment of resources which will have the effect of foreclosing formulation of implementation of any reasonable and prudent alternative to authorization of relicensing.

26 involved in the proceeding." 10 C.F.R. 20.309(f)(1)(iv).

As the U.S. Supreme Court stated in TVA v. Hill , supra , "One would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or mod ification of habitat of such species

-This language a dmits of no exception.

" Simply put, there is no way around the fact that the NRC must comply with the ESA in all respects before relicensing can occur. Since the roseate tern was found to be present in 2005 by Entergy and the USFWS, as shown above, the NRC staff was required to prepare a biological assessment.

"If a project is allowed to proceed without substantial compliance with those procedural requirements, there can be no assurance that a violation of the ESA's substantive provisions will not result. The latter, of course, is impermissible.

" Thomas, supra at 764, citing TVA v. Hill. Hence, the contention is material to the NRC's findings because it must find ESA compliance before relicensing.

Under NEPA, the NRC must "insure the professional integrity, including the scientific integrity, of the discussions and analyses" included in an EIS and disclose "all major points of view on the environmental impacts." Unless the PNPS EIS is supplemented with Petitioners' data and its' expert's opinion that Entergy and USFWS knew or should have known that their 2005 information about roseate terns was incorrect, and that there is a "significant potential for adverse effects on roseate terns" during the relicensing period, the EIS will be "fatally deficient" and contrary to NEPA's "hard look" requirement. Robertson, supra.

27 Without a biological assessment for the roseate tern "it cannot be determined whether the proposed project will result in a violation of the ESA's substantive provisions." Thomas at 763. Petitioners' substantive information about the foraging, feeding, migration, stating and nesting of roseate terns shows the necessity for a biological assessment. The absence of a biological assessment itself renders the PNPS NEPA alternatives analysis prima facie invalid. Petitioners' contention is material to both ESA and NEPA compliance, prerequisites to relicensing

. Concise Statement of the Alleged Facts or Expert Opinions, with Citations/

References:

§ 2.209(f)(1)(v)

The facts with citations and reference are stated above. Dr.

Nesbit provides his expert opinion that, If PNPS is relicensed and continues to operate for twenty more years, there is significant potential for adverse effects on roseate terns throughout that period (see paragraph 19). These adverse effects will increase if the number of roseate terns nesting at LBP increases during that period, as is likely (see paragraph 9).

These effects could and should have been considered by USFWS during its ESA Section 7 Consultation with the Nuclear Regulatory Commission.

Nisbet Aff. ¶ 21.

Petitioners have cited the law relating to violations of the ESA, NEPA and the NRC's regulations. As to NEPA, this is not a question of whether the NRC properly weighed alternatives under NEPA. Rather, the record demonstrates that as a matter of law, the PNPS EIS is incomplete because it does not contain legally required information.

The failure to comply with the ESA § 7 process and renders the PNPS EIS "fatally deficient" and contrary to NEPA's "hard look" requirement.

28 Contention Raises Genuine Dispute: § 2.309(f)(1)(v i) A "genuine dispute exists" between Petitioners and the applicant, Entergy, on a material issue of law or fact. 10 C.F.R. 20.309(f)(1)(vi).

As shown above, Petitioners dispute Entergy's data and conclusions regarding the roseate tern and effects of PNPS relicensing. Compare: Entergy's 2005 letter to USFWS, its' ER reciting the same information as in the 2005 letter24 B. Factors of 10 C.F.R. 2.309(f)(2) with the Petitioners' Nisbet Affidavit, and Exibits 2, 3 and 4 hereto.

Petitioners' contention meets the standard s of 10 C.F.R. § 2.309(f)(2) because it is based on documents and information available at the time the petition was filed. For Petitioners' issues arising under NEPA, the contentions are based on Entergy's ER, as noted above, with regard to the effects on the roseate tern. Petitioners' contention shows that there are data and conclusions in the PNPS EIS repeatedly stating that the roseate tern "may be present" at the action area, necessitating a biological assessment. Yet, Entergy's ER concludes there are "no effects" on the roseate tern from relicensing and ignores the requirement for further investigation in the form of a biological assessment under the ESA. Thus, the EIS data differs significantly from Entergy's conclusion about "no effects."

24 See also, Entergy's ER which states in relevant part: Renewal of the operating license for PNPS is not expected to result in the taking of any threatened or endangered species. Renewal of the license is not likely to jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modifications of any habitat.

ER, § 4.10.6, p. 4

-18.

29 Even though they have shown that the EIS differs significantly from Entergy's conclusions about the roseate tern, fulfilling the requirements of 2.309(f)(2), and therefore do not need to address 2.309(f)(2)(i)

-(iii), in an abundance of caution Petitioners make the showing required by 2.309(f)(2)(i) through (iii).

Petitioners put forth new information about roseate terns that was not previously available. 10 C.F.R. § 2.309(f)(2)(i).

Since 2006, more information has become available and demonstrates a much larger potential for adverse effects. Nisbet Aff. ¶ 20. Roseate tern sightings since 2008, and recently in August 2011, shows regular roseate tern sighting in the vicinity of PNPS.

Id. at ¶ 14. More terns are nesting on LPB in 2011 than in previous years, and in 2007 and 2009 more have been found staging there.

Id. ¶ 4, 11, 20. Further, Energy's data about future operations of PNPS on the food supply for roseate terns was only made available to Petitioners by the NRC staff in mid

-April 2012, less than three weeks ago. New discharge monitoring data showing violations of the Clean Water Act in October to December 2012 exceeding the limit by 140% and 40% at two different outfalls and this information was not previously available. This information is relevant to effects on the roseate tern itself and its food supply.

The new information proffered by Petitioners' contention is materially different than information previously available, as required by 10 C.F.R. § 2.309(f)(2)(ii). As shown in Facts, above, the USFWS claimed that the roseate tern's presence at PNPS was "probably transitory" and Entergy claims "no effects" from relicensing on the tern. Petitioners' information shows that the tern's presence is not "probably transitory" but they nest, forage, feed, and stage in significant numbers in the vicinity. Petitioners' expert testifies that the there is significant potential for adverse effects on roseate terns 30 during the relicensing period. These adverse effects will increase if the number of roseate terns nesting at LBP increases during that period, as is likely. Nisbet Aff. ¶ 21. This information, and the other information outlined in Facts, above is materially different than information previously available.

Petitioners

' proffered evidence constitutes "new and significant information" under NEPA whose environmental implications must be considered before the NRC may make a decision that approves license renewal for PNPS. Therefore, the NRC must supplement the PNPS EIS to include information from the ESA and MSA processes.

These are significant new circumstances and information relevant to environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R. § 1509(c)(1)(ii);

10 C.F.R. §§ 51.92 (a)(2), 51.50(c)(iii), 51.53(b), 51.53(c )(3)(iv).

Petitioners submitted this contention in a timely fashion based on the availability of the subsequent information. 10 C.F.R. § 2.309(f)(2)(iii). There is no hard and fast rule as to what is "timely." NRC regulations at 10 C.F.R. Part 2 contain many rules specifying time limits in which certain pleadings must be filed.

No rule sets a designated number of days for submitting a late

-filed contention. This is consistent with the purpose of the provision, to allow the inclusion of important new information discovered after the proceedings have commenced. "Timely" requires that Petitioners acted reasonably; but not within a specific number of days.

Petitioners acted reasonably here in filing this contention. During the period from 2006 to the present, Petitioners reasonably relied upon USFWS and the NRC staff to properly comply with their own rules requiring a biological assessment when an ESA

-

31 listed species is present. In fact, Petitioners reasonably expected that all proper procedures relating to environmental issues would have been followed, but they have not: Entergy's Clean Water Act permit expired 16 years ago and will not be reviewed prior to relicensing; NMFS has indicated it will not concur with the NRC staff "no effects finding" on the other 11 endangered species at issue in this proceeding; Entergy and the NRC refuse to provide information about the identity, quantity, and volumes of all toxic chemicals discharged from PNPS; a critical document on the effects of Entergy's once

-through cooling system on the roseate tern food supply and the ecosystem was not made public until mid

-April 2012; and recent CWA discharge monitoring reports are still being withheld from the Petitioners.

It is patently unfair for the Petitioners to bear the burden of bringing to light the significant, material violations of environmental laws and derogation of duty by regulators with respect to PNPS relicensing. Since January, 2012, a stupefying tale of myriad failures of environmental regulators to adequately do their jobs has been unwinding as Petitioners continue to research significant issues like ESA and CWA compliance.25 25 See, Petitioners March 8, 2012 filing and subsequent pleadings and affidavits relating to violations of the ESA, Magnuson

-Stevens Fisheries Conservation Act, NEPA, and the stalled NPDES process.

Under the circumstances, which has required reviewing huge volumes of data, Petitioners acted reasonably and brought this contention in a timely fashion, based on the availability of the subsequent information about roseate terns and Entergy's abysmal track record on CWA compliance, the failure by the NRC to include critical documents in the record, and the failure of the NRC and Entergy to make available to the public information about all of the toxic pollutant discharges from PNPS.

32 III. Motion to Reopen 10 C.F.R. § 2.326 Pursuant to 10 C.F.R. § 2.326, Petitioners move to reopen the closed record to consider additional evidence about an issue not previously in controversy among the parties. Petitioners show here that they meet the standards of 10 C.F.R. § 2.326(a), (b) and (d). Under 10 C.F.R. § 2.326(a), a motion to reopen a closed record to consider additional evidence will be granted where the following criteria are met: "(1) the motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) the motion must address a significant safety or environmental issue; and (3) the motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially." As shown here Petitioners satisfy these criteria.

A Licensing Board is empowered to reopen a proceeding at least until the issuance of its initial decision, but no later than either the filing of an appeal or the expiration of the period during which the Commission can exercise its right to review the record.26 26 Zimmer Nuclear Power Station, Unit 1), LBP 58, 18 NRC 640, 646 (1983).

If a Licensing Board believes that circumstances warrant reopening the record See also, 10 C.F.R. §§ 2.318(a), 2.713(a), 2.319(m), 2.341 (formerly §§ 2.717(a), 2.760(a), 2.718(j), 2.786); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB

-699, 16 NRC 1324, 1326, 1327 (1982); Cincinnati Gas and Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1), LBP 12, 17 NRC 466, 467 (1983); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-83-25, 17 NRC 681, 683 (1983); Cincinnati Gas and Electric Co. (William H.

Zimmer Nuclear Power Station, Unit 1), LBP 58, 18 NRC 640, 646 (1983), citing, Three Mile Island, supra, 16 NRC at 1324. Where no appeal from an initial decision has been filed within the time allowed and the period for sua sponte review has not expired, jurisdiction to rule on a motion to reopen lies with the Licensing Board. Limerick, supra, 17 NRC at 757.

33 for receipt of additional evidence, it has discretion to take that course of action.27A matter may be of such gravity that the motion to reopen should be granted notwithstanding that it might have been presented earlier.

28 The motion to reopen is timely presented, and/or presents an exceptionally grave issue that may be considered in the presiding officer's discretion. 2.326(a)(1). The fact that relicensing Entergy's Pilgrim station for another 20 years of operation using a once

-through cooling system presents a "significant potential for adverse effects on roseate terns throughout that period, Nisbet Aff. ¶ 21, presents an "exceptionally grave issue." Indeed, the fact that endangered species are the subject of the contention proffered evidence of potential effects on them by definition makes it an "exceptionally grave issue," even absent an expert opinion that there is "significant potential for adverse effects." Most roseate terns from the population breeding in the northeastern USA and southeastern Canada stage in the area around Cape Cod from late July to mid

-September. Id. ¶ 10. Within the two to four mile vicinity of PNPS is a major site for staging roseate terns. Id., ¶ 21. A study by Mass Audubon in 2007

-2009 found that LBP had become a "major staging site, with a high count of 4,776 birds (about half the North American population) on September 6, 2007. Nisbet Aff. ¶

11. The PNPS breakwater in Cape Cod Bay and the turbulent water discharged from the once

-through cooling system is essentially an attractive nuisance for this federally endangered species.

27 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB

-443, 6 NRC 741 (1977). 28 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP

-8 3-30, 17 NRC 1132, 1143 (1983), citing, Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB

-138, 6 AEC 520, 523 (1973).

34 Nisbet Aff. ¶ 7 ("The turbulent water around the two jetties that form the intake and discharge channels at PNPS, turbulence created by regular and periodic cooling water discharges, and the tide rips off Rocky Point (about one quarter mile from PNPS) and Manomet Point (about two miles to the southeast) are expected to be prime locations for foraging roseate terns.")

The USFWS clearly did not consider the impacts of toxic pollution discharges for PNPS and regular killings of the roseate terns food supplies in making its "not likely to adversely effect" determination in 2005. The PNPS EIS was not available at that time, and in any event, does not address water quality in any meaningful way, as shown above.

The NRC and Entergy had not made the ENSR 2000 report available to the public to document its sweeping assertions of "no effect" on the roseate tern from its cooling water operations. The USFWS and Entergy should have considered the potential for adverse effects on roseate terns and their fish prey by pollutants discharged from PNPS, and from impingement and entrainment of prey fish and their eggs and larvae. Nisbet Aff. ¶ 19. There is not one scintilla of documentation in the PNPS EIS to support the USFWS 2005 finding of "possibly transitory" and "not likely to adversely effect" the roseate tern.

The ESA "should not be implemented "haphazardly, on the basis of specul ation," Bennett v. Spear

, 520 U.S. 154, 176, (1997). The agency with jurisdiction over the species must utilize the "best scientific ... data available" forming a biological opinion, and while some degree of speculation is inherent in agency decision making, in the "precautionary context" of the ESA, the agency determination must at least be "reasoned." Oceana v. Evans , 384 F. Supp. 2d 203, 218

-219 (D.D.C. 2005). While a biological opinion is not at issue here, it is clear from the ESA and the approach of the 35 U.S. Supreme Court to its implementation that where an endangered species is present in the action area, the USFWS must at least cite some data to support a finding of "not likely to adversely affect" the species, and that data must be publicly available and in the EIS. Here, the USFWS, Entergy and the NRC staff have presented no data: not one study or report is cited to support the USFWS haphazard, speculative determination that the presence of the roseate tern "near the power station is probably transient in nature." USFWS letter, Mar. 6, 2005. Thus, there is an "exceptionally grave issue" raised by Petitioners' contention.

The Petitioners' motion to reopen addresses a significant environmental issue as required by 10 C.F.R. 2.326(a)(2). The U.S. Supreme Court could not be clearer about the duty to comply with the ESA. TVA v. Hill, supra. The NRC's own position is that a biological assessment is required when an ESA

-listed species may be present, and the PNPS EIS shows that the roseate tern may be present in the action area. Under the ESA, "action area" is defined as "all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the a ction." 50 C.F.R.

402.02. The affidavit of Dr. Nisbet shows the presence of roseate terns in the action area. The potential impacts on roseate terns and violations of NEPA and the ESA are "significant environmental issues." As stated by the Thomas court, "The strict substantive provisions of the ESA justify more stringent enforcement of its procedural requirements, because the procedural requirements are designed to e nsure compliance with the substantive provisions." Id. at 764 (emphasis omitted). The Ninth Circuit has not backed off from the Thomas Court's position, repeating it in Conner v. Burford

, 848 F.2d 1441, 1458 n.40 (9th Cir. 1988) and in Forest Guardians v. Johanns

, 450 F.3d 455, 457 (9th Cir. 2006).

36 Petitioners' motion demonstrates that a "materially different result would be or would have been likely had the newly proffered evidence been considered initially" as required by 10 C.F.R. § 2.326. While the NRC and Entergy assert there is not likely to be an adverse effect on the roseate tern, Dr. Nisbet testifies that "there is significant potential for adverse effects on roseate terns" from relicensing. If the NRC staff had complied with the ESA, a materially different result would have been likely because there would be a biological assessment as to whether PNPS relicensing would be likely to adversely effect the roseate tern. The record would contain the information cited in the Nisbet Affidavit and Petitioners' documents and this information would be taken into account in the balance of alternatives under NEPA.

As required by 10 C.F.R. § 2.326(b), Petitioners' motion is accompanied by the Nisbet Affidavit which sets forth the factual and/or technical bases for their claim and that the criteria of 2.326(a)(1)

-(3) are satisfied. These affidavits, accompanying documents, and documentation from the NRC record, establish that the motion is timely and/or raises an "exceptionally grave" issue, as required by § 2.326(a)(1). Nisbet Aff. ¶

21. It is a significant environmental issue (a)(2), and a materially different result would be or would have been likely in that a biological assessment would be created and new information added to the record. § 2.326(a)(3). IV. Request for Hearing and Petition for Leave to Intervene 10 C.F.R. 2.309(a) and (d) A. Standing Pilgrim Watch Standing

37 Petitioner Pilgrim Watch (PW) is already a party to this matter, and thus clearly has the right under the Atomic Energy Act to be a party to this proceeding

- one in which many contentions are not closed, in whic h Entergy's operating license renewal application has not been granted. Pilgrim Watch is a non

-profit citizens' organization located at 148 Washington Street, Duxbury, Massachusetts, 02332. It is represented by Mary Lampert pro se, who makes her residence and place of occupation and recreation within ten (10) miles of Pilgrim Nuclear Power Station.

JRWA Petitioner JRWA maintains its office at 55 Landing Road, Kingston, Massachusetts, tel. 781

-585-2322. 10 C.F.R. 2.309(d)(i), Under 10 C.F.R. 2.309(d)(ii), a petitioner must set out the nature of its' right under the Atomic Energy Act to be made a party to the proceeding. When assessing whether a petitioner has set forth a sufficient interest to intervene, NRC licensing boards generally rely on judicial concepts of standing. See Entergy Nuclear Vermont Yankee. L.L.C.. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station)

LBP-04-28, 60 NRC 548, 552 (2004);

Allen v. Wright

, 468 U.S. 737, 751 (1984). An organization seeking to intervene must demonstrate either organizational or representational standing. Petitioner JRWA seeks to intervene and/or participate as a party based on representational standing, by demonstrating that one or more of its members would have standing to intervene on their own, and that the identified members have authorized the organization to request a hearing on their behalf. See, Shaw AREVA MOX Servs.

(Mixed Oxide Fuel Fabrication Facility), LBP 14, 66 NRC 169, 183 (2007). In addition, the interests that the representative organization seeks to protect must be germane to its own purpose, and 38 neither the asserted claim nor the requested relief must require an individual member to participate in the organization's legal action. Id. The "prudential" standing requirement requires a showing that asserted interest arguably falls within the zone of interests protected by the governing law.

For operating license proceedings, the Commission generally has recognized a presumption in favor of standing for those persons who have frequent contacts with the area near a nuclear power plant. See, e.g., Cleveland Elec. Illuminating Co.

(Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 95 (1993). In particular, "Commission case law has established a 'proximity presumption,'

whereby an individual may satisfy . . . standing requirements by demonstrating that his or her residence or activities are within the geographical area that might be affected by an accidental release of fission products, and in proceedings involving nuclear power plants this area has been defined as being within a 50

-mile radius of such a plant."29 There is a presumption that persons living in close proximity to the facility (50 miles) have standing to intervene in the proceedings.30 29 Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant, Unit 1), LBP 11, 65 NRC 41, 52 (2007). Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI 4, 37 NRC 156, 162-63 (1993).

30 The Commission has long used the 50

-mile presumption to establish standing. The Commission has noted that "[t]he rule of thumb generally applied in reactor licensing proceedings" includes "a presumption of standing for persons who reside or frequent the area within a 50

-mile radius of the facility." Sequoyah Fuels, CLI-94-12, 40 NRC at 77. See also North Anna, ALAB-522, 9 NRC at 56; Gulf States Utilities Co.

(River Bend Station, Units 1 and 2), ALAB

-183, 7 AEC 222 (1974). The 50

-mile presumption "is a recognition of the potential effects at significant distances from the facility of the accidental release of fissionable materials." Babcock & Wilcox (Apollo, Pennsylvania Fuel Fabrication Facility), LBP 4, 37 NRC 72, 83 (1993).

39 JRWA asserts both representational standing and organizational standing based on the declaration of E. Pine duBois, Executive Director of JRWA (duBois). JRWA members live and work within 50 miles of the facility. duBois Affidavit ¶ 5.

duBois is a Kingston resident who lives approximately 8 miles from the PNPS. duBois Aff. ¶ 1 to 5. The duBois Affidavit demonstrates that she, as a member of JRWA and individually, is concerned about the effects on marine resources, including fish and essential fish habitat associated with PNPS relicensing. Id. ¶s 1, 3, 6, 9. 13

-24. The Affidavit also establishes that duBois will suffer a distinct and palpable harm to constitute injury

-in-fact within the zone of interest that are to be protected by the AEA, 42 U.S.C. 2011, et seq., and the injury can be fairly traced to the challenged action and the injury is likely to be redressed by a favorable decision.

Irreparable damage is presumed to flow from a failure properly to evaluate the environmental impact of a major federal action and failure to comply with the procedural provisions of the ESA. Thomas, supra at 763.

Therefore, JRWA and duBois have sufficiently alleged harm that will flow from the Entergy, USFWS, and NRC violations of the ESA and NEPA, as shown below.

An alleged injury to the environment, shared equally by many, can form the basis for standing. See Philadelphia Elec. Co.

(Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1434 (1982). The duBois Affidavit states that she has authorized JRWA to represent her interests in this licensing proceeding. Id. ¶ 3. JRWA meets the standard for organizational standing. JRWA was established in 1985, to protect the "natural resources and wildlife areas for the use and enjoyment of 40 present and future generations, to preserve and protect historic sites, to educate the public about the wise use of natural resources, and to work with other organization having the same purposes."

duBois Aff. ¶ 2. JRWA has engaged in extensive participation in the relicensing proceedings for PNPS and evidenced its concern with the impact of PNPS on the environment in actions to monitor and improve the habitats and populations of fisheries, including the food supply for the roseate tern, in Cape Cod Bay. Id. ¶ 7 to 18.

By intervening in this proceeding, JRWA seeks to protect the environment and the attributes of it which its' members enjoy by ensuring that their proffered evidence about roseate terns, their life cycle, including their food supply, is properly evaluated and weighed under the ESA and NEPA. JRWA members live, work, and recreate in and on Cape Cod Bay, and members enjoy birding and nature observation. Id. at ¶ 5. The protection of these values by ensuring compliance with the ESA and NEPA is directly linked to JRWA's organizational mission and the interests of its members. duBois Aff. ¶ 6 to 12. Neither the Petitioners' contention nor the requested relief requires an individual member to participate.

JRWA has shown that it has members who live, work, and recreate within the 50-mile radius of the PNPS and some of these members have frequent and regular contacts with the ecosystem in the Jones River and Cape Cod Bay, as well as with other features of the natural environment. It has also shown that it has an internets in the water quality in Cape Cod Bay, an issue that affects the roseate tern. duBois Aff. ¶5, 7, 10, 17, 26; Nisbet Aff. ¶ 12, 13, 19.

41 Under 10 C.F.R. § 2.309(d)(iii

), JRWA must state the nature and extent of its' property, financial, or other interest in the proceeding.

Petitioner JRWA has both a property interest, a financial interest, and other interests in the proceeding by virtue of its property ownership and the interest of its members in preserving the environment and natural resources, including bird life and the ecosystem upon which the birds, including roseate terns depend. duBois Aff. ¶ 1 to 27. These interests relate to both the JRWA's organizational mission and the interests of its members. Id. JRWA and its members have an interest in the health and viability of Cape Cod Bay, as a habitat for fisheries that are a food supply for the roseate tern. JRWA has raised public and private funds totaling over

$750,000 dollars to restore fish passage on the Jones River, including passage for the ESA candidate species river herring. Id. at ¶ 18. Under 10 C.F.R. § 2.309(d)(iv) the petitioner must state the possible effect on its interest of any decision or order that may be issued in the proceeding.

A decision or order requiring a biological assessment on the roseate tern and supplementation of the PNPS EIS under NEPA will further JRWA's interests in protecting and restoring the natural resources of Cape Cod Bay and the Jones River. It will also have a positive impact on the interests of duBois and JRWA members in ensuring that the adverse environmental impacts of Entergy's operations on roseate terns and their food supply are properly addressed. Thus, an order or decision will directly impact the interests of duBois, JRWA, and its members interests and will help ensure that JRWA as an organization can successfully carry out its mission.

V. Nontimely Filings under 2.309(c

)

42 NRC regulation 10 C.F.R. § 2.309(c) requires the deciding body to balance eight factors in deciding whether to grant a nontimely requests and/or petitions and contentions.

Late intervention is possible until issuance of a full

-power license. Texas Utilities Electric Co.

(Comanche Pak Steam Electric Station, Unit 2), CLI-93-4, 37 NRC, 156, 160 (1993). A petitioner whose late

-filed petition to intervene meets the [eight]-part test of 10 C.F.R. § 2.309 (c)(1) need not meet any further late

-filing qualifications to have its contentions admitted. It is not to be treated differently than a petitioner whose petition to intervene was timely filed. Washington Public Power Supply System (WPPSS Nuclear Project No. 3), LBP 17A, 19 NRC 1011, 1015(1984). As shown below, Petitioners meet the eight

-part test of §2.309(c)(1) and do not need to meet the late

-filing qualifications of §2.309(e), although they have make the showing nonetheless.

Good cause Late-filed petitions must address "[g]ood cause, if any, for the failure to file on time." 10 C.F.R. § 2.309(c)(1)(i).

This "good cause" factor should be given substantial weight in the balancing of factors required under § 2.309(c)(1).31 31 Texas Utils. Elec. Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), CLI 12, 36 NRC 62, 69-73 (1992).

Crow Butte Resources, Inc. (North Trend Expansion Project), LBP 6, 67 NRC 241 (2008) (good cause is the most important factor in balancing the eight factors). Where a late filing of an intervention petition has been satisfactorily explained, a much smaller demonstration with regard to the other factors of 10 C.F.R. § 2.309 (c) is necessary than would otherwise be the case. Wisconsin Public Service Corporation (Kewaunee Nuclear Power 43 Plant), LBP 24, 8 NRC 78, 83 (1978).

G ood cause has been found where a contention is based on new which could not have been presented earlier, and when the intervener acted promptly after learning of the new information. The availability of material information "is a significant factor in a

Board's determination of whether a motion based on such information is timely filed."32). The availability of new information may constitute good cause for delay in seeking intervention

.33 Estoppel is applied where a petitioner relies to its detriment on NRC Staff's representations. See, e.g., Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility), LBP 24, 15 NRC 652, 658 (1982), rev'd on other grounds, ALAB

-682, 16 NRC 150 (1982) (where Staff represented that no action would be immediately taken on licensee's application for renewal, elementary fairness required that the action of the Staff could be asserted as an estoppel on the issue of timeliness of petition to intervene, and the petition must be considered even after the license has been issued

). Here, there Petitioners meet the good cause prong by showing: (1) new material information has become available about the Roseate tern and about the pollution discharges from PNPS that may impact the roseate tern and the failure to disclose all information relating to toxic pollution discharges, (2) Entergy's claims that its operations

32 Houston Lighting & Power Co.

(South Texas Project, Units 1 & 2), LBP 19, 21 NRC 1707, 1723 (1985) (internal citations omitted

) 33 Duke Power Co. (Amendment to Materials License SNM

-1 773 -- Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB

-528, 9 NRC 146, 148

-149 (1979). See also Cincinnati Gas and Electric Co.

(William H. Zimmer Nuclear Station), LBP 14, 11 NRC570, 572-573 (1980)

.

44 will have no effect on Roseate tern have been shown to be based on data that was incomplete and inaccurate, (3) the ENSR 2000 report that forms part of the basis of USFWS "not likely to adversely affect" finding on Roseate terns has only recently been disclosed to the public, and the related Tetra Tech report is being withheld from public scrutiny on spurious grounds, (4) Petitioners relied to their detriment on the misleading and inaccurate statements of USFWS, Entergy and the NRC staff that the presence of Roseate terns in the ESA action area is "probably transient," and (5) Petitioners have acted promptly under the circumstances after learning of the new information.

Further, the important public policy behind the ESA, as laid out in no uncertain terms by the U.S. Supreme Court in TVA v. Hill, at 173 supra, weighs in Petitioners' favor under the good cause factor. As noted, the ESA "commands" that the NRC "insure" that relicensing of PNPS not jeopardize the continued existence of the Roseate tern, and the statute "admits of no exception." Petitioners and the public relied upon Entergy to accurately and completely present data about the Roseate tern, particularly given the fact that the world's tern experts are "on their doorstep." Nisbet Aff. ¶ 17.

Petitioners relied on USFWS to examine its own data on the Roseate tern, instead of summarily and without reference to any scientific data, dismissing the Tern's presence as "probably transitory."

The ESA "admits of no exceptions" and requires federal agencies to take their obligations under the act seriously. Pursuant to 50 C.F.R. § 402.14(g)(3), a federal agency must evaluate the effects of a proposed action and cumulative effects on the listed species or critical habitat. The effects of the action include both direct and indirect effects 45 in concert with interrelated and interd ependent activities that will be added to the environmental baseline. 50 C.F.R.

402.02. As stated in TVA v Hill , supra at 174-187, It is clear from the Act's legislative history that Congress intended to halt and reverse the trend toward species extinction

-- whatever the cost.

The pointed omission of the type of qualified language previously included in endangered species legislation reveals a co nscious congressional design to give endangered species priority over the "primary missions" of federal agencies. Congress, moreover, foresaw that 7 would on occasion require agencies to alter ongoing projects in order to fu lfill the Act's goals.

(emphasis supplied)

Here, the PNPS EIS record contains no data about how the USFWS came to the unsupportable conclusion that the presence of roseate terns in the PNPS action area is "probably transient" and therefore PNPS relicensing is "not likely to adversely affect" the species. The Petitioners' relied upon the USFWS to do its job by providing a reasonable explanation of this conclusion, and citations to the "records" it claims it consulted.

Petitioners also relied on the NRC staff to follow its own procedures that require a biological assessment when an endangered species "may be present" and to do make a reasonable effort to inquire as to the basis for the USFWS finding of "probably transitory" given the conflicting data in Entergy's own report stating that the Roseate tern "cannot be dismissed as an occasional visitor."

It should not be incumbent upon the public to do the agencies' jobs, and to uncover inaccuracies and incomplete data in NRC licensee applications. Yet, this burden has been shifted to the Petitioners' in this case. The Respondents should be estopped from arguing timeliness, and the ASLB should find that good cause exists for Petitioners'

non-timely filing. Petitioners seek intervention in a timely and appropriate fashion, within days of the NRC's release of the ENSR 2000 report, promptly upon following up 46 on the litany of environmental errors that characterize this licensing proceeding. Petitioners proffer both data that the agencies and Entergy themselves knew or should have known existed in 2006 and new information that shows a more extensive presence of roseate terns in the action area. Facts, supra. Moreover, new information about the roseate tern, and expert testimony that PNPS there is significant potential for adverse effects on roseate terns from PNPS relicensing is good cause in itself for allowing Petitioners' contention. Nisbet Aff. ¶ 21.

Right to be Made a Party Late-filed petitions must address the nature of the petitioner's right under the Atomic Energy Act to be made a party to the proceeding. 10 C.F.R. § 2.309(c)(1)(ii).

The Petitioners' right under the Act to be made a party arise from its interest in the proceeding and the harm to that interest, as described in Standing supra. To establish standing, under 10 C.F.R. § 2.309(d)(ii) is required to make the identical showing as under § 2.309(c)(ii). The Petitioners incorporate by reference herein the law and testimony in Standing, supra, to establish under § 2.309(c)(1)(ii) that each has a right to be made a party, or, in the case of PW, is already a party.

This information shows that this factor weighs in Petitioners' favor.

Petitioner's Property, Financial and Other Interests Late filings must address the nature and extent of the petitioner's property, financial or other interest in the proceeding. 10 C.F.R. § 2.309(c)(1)(iii). Petitioners' showing in Standing, supra, establishes standing, and weighs in Petitioners' favor.

47 Possible Effect of Any Order on the Petitioner's Interest(s)

Fourth, late

-filed petitions must address the "possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest.

"10 C.F.R. § 2.309(c)(1)(iv). This factor is addressed in Standing, supra, and shows that this factor weighs in Petitioners favor. Other Means for Protecting Petitioners' Interests Late filed petitions must address the "availability of other means whereby the requestor's/petitioner's interest will be protected." 10 C.F.R. § 2.309(c)(1)(v). The fact that no one will represent a petitioner's perspective if its hearing request is denied is in itself sufficient for the Commission to excuse the untimeliness of the request.

Westinghouse Electric Corporation (Nuclear Fuel Export License for Czech Republic

- Temelin Nuclear Power Plants), CLI 7, 39 NRC 322, 329 (1994).

The question to be addressed is not whether other parties may protect a petitioner's interests, but rather whether there are other means by which the petitioner may protect its own interests.34 Participation of the NRC Staff in a licensing proceeding is not equivalent to participation by a private intervenor. 35 Other than litigating their contentions in the licensing proceeding, there are no Thus, it is not sufficient to say that the NRC staff will represent the Petitioners' interests in the licensing proceeding.

34 Long Island Lighting Co.

(Jamesport Nuclear Power Station, Units 1 & 2), ALAB

- 292, 2 NRC 631 (1975). 35 Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB

-747, 18 NRC 1167, 1175-1176 (1983). See Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-5, 31 NRC 73, 81 (1990), aff'd, ALAB

-950, 33 NRC 492, 495

-96 (1991).

48 other means available to Petitioners to protect their interests in ensuring that the NRC complies with the ESA with regard to protecting endangered Roseate terns. Entergy has submitted information that is inaccurate and incomplete in a material respect with regard to the Roseate tern, the NRC staff blindly and without question accepted this information and failed to thoroughly examine the contradictions among the license application, the PNPS EIS, and the USFWS statement of "probably transitory." Neither the NRC, USFWS, nor Entergy have put into the record the data on Roseate terns that was available in 2006, nor any of the subsequent new data, including the 2011 sighting data that shows 10 Terns in the vicinity of PNPS, at MCCS. Additional relevant, material and substantial information about Entergy's CWA violations at the site, and the failure to disclose material facts about the toxic water pollution from PNPS, as described in Facts, supra, is of utmost importance to a determination of effects on the roseate tern and must be included in the record. There is no other forum that is developing a record that will be the basis for the decision to relicense PNPS. It is this body that must be provided with the information required to be developed under the ESA with regard to the Roseate tern.

This factor weighs in Petitioners' favor.

Extent to Which Petitioners' Interests Will be Represented by Existing Parties A late filing must address the "extent to which the requestor's/petitioner's interests will be represented by existing parties." 10 C.F.R. § 2.309(c)(1)(vi).

The ALSB has ruled that where denial of a late petition would result in no heari ng , and no parties to protect the petitioner's interest, the question, "To what extent will Petitioners' interest be represented by existing parties?" must be answered, "None." This factor therefore, was held to weigh in favor of the late

-filing petitioners. Florida Power and Light Co.

(Turkey 49 Point Nuclear Generating Units 3 and 4), LBP 21, 10 NRC 183, 195 (1979).

The NRC has accurately recognized that, in weighing the 2.309(1)(vi) factor, a board will not assume that a late-filing petitioner's interests will be adequately represented by the NRC Staff. The general public interest, as interpreted by the Staff, may often conflict with a late petitioner's private interests or perceptions of the public interest. Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1174

-1175 n.22 (1983). NRC Digest, Prehearing Matters, 35; see also NRC Practice Digest, Prehearing Matters 33: "Participation of the NRC Staff in a licensing proceeding is not equivalent to participation by a private intervener. As in Turkey Point, supra, here, the question of "to what extent will Petitioners' interest be represented by existing parties?" must be answered, "None." The other parties to this proceeding are Entergy and the NRC Staff. (The Massachusetts Attorney General has not yet been denied a hearing, and has appeal this denial to the First Circuit Court of Appeals

.) Throughout this proceeding both NRC Staff and Entergy (acting in concert) have consistently opposed Petitioners' interests i n ensuring that environmental issues are adequately addressed. See, Entergy and NRC staff oppositions and motion to strike regarding Petitioners' March 8, 2012 motion on the ESA, NEPA and the Magnuson

-Stevens Fisheries Conservation Act.

Entergy and the NRC staff have engaged in a pattern of minimizing, ignoring, and delaying consideration of significant procedural and substantive issues regarding ESA-listed species and critical habitat, and essential fisheries habitat. (See, e.g., NRC attempt to punt to EPA its duty to comply with the MSA for essential fish habitat that 50 will be negatively impacted by PNPS operations, as set forth in Petitioners March 8, 2012 filing.) Moreover, Entergy and the NRC staff continue to ignore and hide information about the toxic chemical discharges from PNPS and to legitimate grounds, withhold from the public material relevant data such as the Tetra Tech report, about the environmental harm from PNPS once

-through cooling water system.

One cannot legitimately claim that Petitioners interest in ensuring compliance with the ESA regarding the Roseate tern will be protected by any means other than their participation in this proceeding. Moreover, no other party will represent Petitioners' interests in ensuring a complete NEPA record. Turkey Point, supra. This factor thus weighs in favor of Petitioners' intervention. Unless the hearing is reopened and Petitioners allowed to intervene and litigate their contentions, their interests will not be represented in the relicensing proceeding.

Extent to Which Petitioner's Participation Will Broaden the Issues or Delay the Proceedings Late-filed petitions must address

"[t]he extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceeding." 10 C.F.R. § 2.309(c)(1)(vii).

Petitioners' contention raises significant, material issues relating to violations of the ESA and NEPA compliance and Entergy's failure to provide information in its license application that is "complete and accurate in all material respects. 10 C.F.R. § 54.13. Petitioners show that the USFWS 2005 determination that roseate terns are "probably transient" and "not likely to be adversely affected" by relicensing was wrong and contrary to widely known data at the time, and that new data about the roseate tern and PNPS water pollution raises significant issues under the ESA 51 and NEPA that warrant reopening. The seriousness of these issues outweighs any inconvenience or delay in the relicensing decision.

In balancing the factor of the extent to which petitioners' participation will broaden the issues or delay a currently the proceeding, the ruling body should focus on the "extent" to which the issues will be broaden or delay will occur, and whether it is appropriate to weigh this factor in evaluating the late

-filing of the petition and Petitioners' narrow contention. Indeed, here, this factor should be given little or no weight at all, given the fact that other contentions are pending, and that the ESA "admits of no exceptions." TVA, supra.

If this factor is given any weight, the question of "extent" should be viewed in relation to the benefits that may accrue the public and Petitioners from the proceeding being reopened to consider new discovered, material information, and the value of petitioners' participation in the proceeding. Petitioners' contentions raise exceptionally grave and significant concerns relative to compliance with the ESA and NEPA and the impact of Entergy's continued operations on Roseate terns over the next 20 years. This material information has not been considered at all in this proceeding

. Issues such as the nature and extent of Entergy's toxic chemical and thermal discharges on the foraging and food supply of the Roseate tern, extent to which the Tern may be attracted to and forage along the jetties and breakwaters where Entergy's intake and discharge channels are located are serious, significant grave issues that outweigh any mere inconvenience to Energy and the NRC staff from delay. Nisbet Aff. ¶ 13, 21.

52 Further, any broadening of the issues or delay in the proceedings must be viewed against the uncompromising approach to endangered species protection articulated by Congress in the ESA. Petitioner's participation will advance the Congressional purpose of the ESA, and weighs in Petitioners' favor and should be given substantial weight in balancing the eight factors.

In considering factor seven, the Licensing Board has ruled that this includes only that delay which can be attributed directly to the tardiness of the petition.36 While the potential for delay is of immense importance in the overall balancing process,37 In considering the delay factor, the magnitude of threatened delay must be weighed, since not every delay is intolerable.38 The Extent to which Petitioner's Participation May Reasonably Be Expected to Assist in Developing a Sound Record In balancing this factor, the benefits of allowing Petitioners' contention to be litigated outweighs any potential disadvantage with regard to broadening the issues or delaying the proceeding.

Petitioners should not be prejudiced because regulators and Entergy have not complied with specific statutory mandates. The petition is late

-filed in part because they have not done their jobs, and in part because of the recent listing of Atlantic sturgeon and recognition that river herring is a candidate species under the ESA

.

36 Jamesport, supra, ALAB

-292, 2 NRC at 631; South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-8-11, 13 NRC 420, 425.

37 Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB

-743, 18 NRC 387, 402 (1983), it is not dispositive. USERDA (Clinch River Breeder Reactor Plant), ALAB

-354, 4 NRC 383 (1976). 38 Public Service Electric

& Gas Co. (Hope Creek Generating Station, Units 1 & 2), LBP 9, 5 NRC474 (1977).

53 Late filings must address "[t]he extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record."

10 C.F.R. § 2.309(c)(1)(viii).

Here, without Petitioners there the record will be devoid of significant, relevant and material information about whether PNPS relicensing is "likely to have an adverse effect" on the Roseate tern, and the PNPS EIS will be defective. Entergy and NRC staff have have demonstrated a complete disregard for the serious mandates set forth under the ESA and the duty to base a "not likely to adversely effect" on at least some data. Petitioners' affidavit and exhibits demonstrate that there is relevant, material, scientific data that should be included in the record, and therefore their participation will assist in developing a sound record. Furthermore, as a matter of law the ESA and NEPA require consideration of the new and significant information set forth in the Petitioners' contentions, as shown above. This factor weighs in favor of Petitioners' intervention.

In sum, a balancing of the eight factors of 10 C.F.R. § 2.309(d) shows that Petitioners' petition, if determined to be nontimely, should nevertheless be allowed.

VI. Discretionary Intervention under 10 C.F.R. § 2.309(e)

Petitioners alternatively request discretionary intervention under 10 C.F.R. § 2.309(e), in the event that a petitioner is determined to lack standing as matter of right under 2.309(d)(1).39 39 The discretionary intervention doctrine comes into play only where standing to intervene as a matter of right is not established. Duke Power Co.

(Oconee Nuclear Station and McGuire Nuclear Station), ALAB

-528, 9 NRC 146, 148 n.3 (1979). In Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-363, 4 NRC 631 (1976), despite petitioner's lack of judicial standing, intervention was permitted based upon petitioner's demonstration of the potential significant contribution it could make on substantial issues of law and fact not otherwise raised or presented, and a showing of the importance and immediacy of Although it is Petitioners' position that they have established 54 standing as a matter of right, they address the six factors to be weighted under 2.309(e). The factors weighing in favor of allowing discretionary intervention in § 2.309(e)(1)(i)

- (iii), and mirror the factors in § 2.309(c)(1)(viii), (iii), and (iv) (nontimely filing) respectively. The factors weighing against intervention in § 2.309(e)(2)(i)

- (iii) mirror the factors in § 2.309(c)(1)(v), (vi), and (vii), respectively.

Since Petitioners have addressed the parallel factors under 2.309 weighing in favor of and against allowing late filing, they incorporate by reference their arguments above addressing §2.309 to support their request for discretionary intervention under § 2.309(e). They also provide additional analysis below.

The deciding body has broad discretion to allow intervention where standing has not been established as a matter of right. The primary factor to be considered is the significance of the contribution that a petitioner might make: that is, whether permissive intervention is likely to produce a valuable contribution to the NRC's decision

-making process on a significant safety or environmental issue appropriately addressed in the proceeding.40 This may include a determination of whether a discernible public interest would be served by granting discretionary intervention.41

those issues.

Babcock and Wilcox (Apollo, Pennsylvania Fuel Fabrication Facility, LBP-93-4,37 NRC 72, 94 n.66 (1993).

In order for the Commission to 40 Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB

-413, 5 NRC 1418 (1977). See also Detroit Edison Co.

(Enrico Fermi Atomic Power Plant, Unit 2), ALAB

-470, 7 NRC 473, 475 n.2 (1978); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP 23, 36 NRC 120, 131

-32 (1992); Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 & 2; Watts Bar Nuclear Plant, Unit 1), LBP 02-14, 56 NRC 15, 28 (2002); Andrew Siemaszko, CLI-06-16, 63 NRC 708, 715-16 (2006).

41 Envirocare of Utah, Inc., LBP-92-8, 35 NRC 167, 183

- 84 (1992). See Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI 27, 4 NRC 610, 617 (1976); see also Andrew Siemaszko, CLI

-0 6-16, 63 NRC at 716; General Public Utilities Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP 23, 44 NRC 143, 160 (1996).

55 grant a discretionary hearing, a petitioner must offer something that would generate significant new information or insight about the challenged action Here, as shown above, Petitioners' proffered evidence and affidavit is essential to ensuring a sound adjudicatory record on the issue of whether PNPS relicensing is "likely to adversely effect" the federally endangered Roseate tern. Petitioners' expert testifies that there is a "significant potential for adverse effects." Nisbet Aff. ¶ 21. As shown above, Entergy, the NRC staff, and USFWS ignored relevant material scientific data available in 2006, and new information about the presence of Roseate terns in the action area has been identified since that time. These other parties have not placed into the record this information that they knew or should have known existed in 2006 and since that time. To the contrary, they have blatantly disregarded readily available data, sweeping it under the rug and going along with the unsupportable statement by the USFWS that the presence of the Roseate tern at PNPS is "probably transitory." Unless Petitioners are allowed to intervene, this information will not be in the record, and the record will be unsound.

This primary factor to be considered under 2.309(e), TVA, supra, weighs heavily in Petitioners' favor.

Considerations in determining the petitioner's ability to contribute to development of a sound record as per 2.309(1)(i) include showing a significant ability to contribute on substantial issues of law or fact which will not be otherwise properly raised or presented; the specificity of such ability to contribute on those substantial issues of law or fact; justification of time spent on considering the substantial issues of law or fact; provision of additional testimony, particular expertise, or expert assistance; and specialized education or pertinent experience.

Duke Power Co.

(Catawba Nuclear 56 Station, Units 1 and 2), LBP 1, 13 NRC 27, 33 (1981) (and cases cited therein). Through their affidavit and documentary evidence, Petitioners have shown a significant ability to contribute on substantial issues of law and fact relating to ESA compliance, and these clearly will not be otherwise raised or presented. The time to be spent considering this information is justified given the importance placed by the U.S. Supreme Court on following the ESA's procedural and substantive mandates. TVA, supra. Petitioners' expert witness, their intimate knowledge of the geographic and historical features of the PNPS site and its ecosystems show that they have specialized knowledge and pertinent experience relating to the contention. See, DuBois Aff., Nisbet Aff. (e.g., Dr. Nisbet has studied Roseate terns in the vicinity of PNPS since 1970; has published 28 peer

-reviewed papers on Roseate terns, and is an internationally recognized expert.)

If there were other means to protect Petitioners' interests, this would weigh against allowing intervention but that is not the case. 2.309(e)(ii). There is simply no other proceeding in which the question of likely adverse impacts from PNPS relicensing on federally endangered Roseate terns will be addressed or adjudicated. Further, Petitioners' interests, as described in Standing , supra, will be served by order correcting the violations of the ESA set forth in Petitioners' contention, and to add new and significant information and newly proffered evidence to the EIS. 10 C.F.R. § 2.309(e)(1)(iii);

Thomas, supra; Silva v. Romney , 473 F.2d 287, 292 (1st Cir. 1973). Compliance with NEPA ensures that environmental issues are given full consideration in "the ongoing programs and actions of the Federal Government." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371, n.14 (1989).

57 Petitioners' interests will not be represented by existing parties as shown above in connection with § 2.309(c), and thus there is little weight to be placed on this factor. Petitioners' participation will not inappropriately broaden the issues or delay the proceeding as also shown above.

In order for the Commission to grant a discretionary hearing, a petitioner must offer something that would generate significant new information or insight about the challenged action.

Here Petitioners' testimony consists of an affidavit that will general significant new information and insight about the adverse impacts of PNPS relicensing on Roseate terns, and citations to scientific data therein, as well as new data about Entergy's toxic water pollution and data gaps. This data is both previously existing and new information showing that Entergy's original license application was incomplete and inaccurate in a material respect. 10 C.F.R. § 54.13. Petitioners have offered significant data, via the testimony of a expert, showing that Entergy, the USFWS, and the NRC staff knew or should have known that information relevant to the Roseate tern contradicted the data in Entergy's license application and the subsequent 2005 USFWS determination of "probably transient." This data, both that existing in 2005

-2006 and more recent data from 2011 is precisely the type of new evidence that should be entered into the record as discretionary matter, regardless of standing

, in order to create a complete and representative record.

As shown here, factors weighing in favor of discretionary intervention under 2.309(e) far outweigh those against allowing intervention.

58 V. Conclusion Petitioners have made the requisite showings for a motion to reopen, to intervene and file contentions, an d non-timely filings. Their request for a hearing should be granted to ensure that consideration of Entergy's relicensing application is based on a sound record and addresses the significant environmental issue of likely adverse impacts to the federally endangered Roseate tern, known to forage, feed, migrate, nest, and stage in the action area that will be affected by Entergy's operation of PNPS through 2032.

May 2 , 2012 On April 30, 2012, the Petitioners notified all parties of record of their intent to make this filing. Entergy and the NRC staff have advised it objects. Massachusetts Attorney General's Office did not respond.

Respectfully submitted, (Electronically signed)

Margaret Sheehan 61 Grozier Road Cambridge MA 02138 Tel. 508-259-9154 Email: meg@ecolaw.biz May 2, 2012 (Electronically signed)

Anne Bingham 78A Cedar St.

Sharon, MA 02067 Email: annebinghamlaw@comcast.net May 2, 2012 (Electronically signed)

Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332

59 Tel. 781-934-0389 Email: mary.lampert@comcast.net May 2, 2012

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

_______________________________

_______

In the Matter of

)

Docket # 50

-293 LR Entergy Nuclear Generation Company

) Entergy Nuclear Operations Inc.

) Pilgrim Nuclear Power Station

) License Renewal Application

) ________________________________

______)

AFFIDAVIT OF IAN CHRISTOPHER THOMAS NISBET, Ph.D.

1. My name is Ian Christopher Thomas Nisbet. I reside at 150 Alder Lane, North Falmouth, Massachusetts 02556.

2. I hold a Ph.D degree from the University of Cambridge and I am a professional environmental scientist. I recently retired from my position as President of I. C. T. Nisbet & Company, an environmental consulting firm, but I continue to do part

-time consulting under the same name.

3. I have studied roseate terns in Massachusetts, including the vicinity of Pilgrim Nuclear Power Station (PNPS) and other parts of Plymouth, Massachusetts, since 1970. I have published 28 papers on roseate terns in peer

-reviewed scientific journals and I have two others awaiting publication. I was a co

-author of the two most recent monographs on roseate terns, published in the series Birds of North America (Gochfeld, M., J. Burger, and I. C. T. Nisbet

, Roseate Tern Sterna dougallii

, No. 370 in The Birds of North America

[eds., A. Poole and F. Gill

], The Birds 2 of North America, Inc., Philadelphia, PA, 1998) and BWP Update (Ratcliffe, N., I. C. T. Nisbet and S. Newton

, Roseate Tern Sterna dougallii , BWP Update, vol. 6 , pp. 77-90, 2004). I am recognized as one of the leading experts on roseate terns, both in the USA and worldwide.

4. I have worked closely with the U.S. Fish and Wildlife Service (USFWS), the Massachusetts Division of Fisheries and Wildlife (MDFW) and the Massachusetts Natural Heritage and Endangered Species Program (NHESP) towards conservation of the roseate tern since the 1970s. I have been a member of the Recovery Team for the Northeast population of the roseate tern (RTRT) since 1989 and I have attended all of its annual meetings. (However, this affidavit is written in my capacity as an independent expert on roseate terns and not on behalf of or as representative of RTRT, USFWS, MDFW or NHESP.)

5. In 1980

-1981, under contract to USFWS, I wrote two lengthy reports reviewing scientific literature on roseate terns. These reports formed the basis for the listing of the Northeast population of the roseate tern as federally endangered in 1987 (Endangered and threatened wildlife and plants: determination of endangered and threatened status for two populations of the roseate tern, USFWS, Federal Register 52: 42064-42071). In 1989, under contract to USFWS, I wrote another report summarizing information on the Northeast population of the roseate tern that had become available since 1981. This formed part of the basis for the Recovery Plan for the Northeast population of the roseate tern, issued in 1989 (Roseate Tern Recovery Plan, northeastern population, USFWS, Newton Corner, MA, 19 89). In 2010, again under contract to USFWS, I reviewed all scientific literature on the Northeast and Caribbean

populations of the roseate tern, and I drafted extensive sections of USFWS's Five

-year Review of the roseate tern (Caribbean Roseate Tern and North Atlantic Roseate Tern

[Sterna dougallii dougallii]. 5-Year Review: Summary and Evaluation, USFWS, Boqueron, Puerto Rico, and 3 Concord, New Hampshire, September 2010.

http://ecos.fws.gov/docs/five_year_review/doc3588.pdf

). 6. I studied roseate terns nesting on Long Beach, Plymouth (LBP), in 1970

-1971 and I continued monitoring them, including counting and marking nests and banding chicks, there until 1994. I was Director of Science for the Massachusetts Audubon Society in 1974

-1980. I have been associated with Manomet Center for Conservation Sciences (MCCS: formerly Manomet Bird Observatory) since 1970 and I served as adviser to their scientific program in the 1990s and 2000s. Since 2011, I have served on the Scientific Advisory Committee of the Goldenrod Foundation, based at LBP, and I have visited LBP several times and observed roseate terns there.

7. In 1998, I coordinated a study of roseate terns staging (gathering, resting and roosting) at many locations around Cape Cod, including LBP. I summarized information from previous studies and was the principal author of a paper on this topic (Trull, P., S. Hecker, M. A. Watson and I. C. T. Nisbet

, Staging of Roseate Terns in the post

-breeding period around Cape Cod, Massachusetts, USA

, Atlantic Seabirds

, vol. 1, pp. 145

-158, 1999). Between 2007 and 2009, personnel of the Massachusetts Audubon Society (MAS) conducted intensive studies of roseate terns staging around Cape Cod, including 76 visits to LBP; three annual reports were issued by MAS's Coastal Waterbird Program. I participated in the MAS studies, although I did not visit LBP in 2007

-2009. I visited LBP several times in 2010 and 2011 and observed staging roseate terns there.

8. Roseate terns have nested at LBP since at least the early 1950s. Oliver Austin's banding records indicate that he banded thousands of roseate tern chicks there in the early 1950s and there were apparently several hundred pairs nesting at that time. I recorded 40 pairs nesting in 1970 and 50 pairs in 1975. However, terns at LBP have been periodically subjected to heavy 4 predation by rats, foxes and other predators, and both roseate and common terns shifted to other sites several times. Twelve pairs of roseate terns nested in 1998, and they were then absent until 2007, a period during which predators were not controlled. Since 2007, intensified efforts by the Town of Plymouth to control predators have encouraged large numbers of common terns to return to the site and to breed successfully. One pair of roseate terns probably nested in 2008, increasing to three pairs in 2011.

9. Roseate terns at LBP form part of a "cold water" segment of the population that breeds in varying numbers at about 20 sites in the Gulf of Maine, Cape Cod Bay and outer Cape Cod. Banding and resighting records show considerable movement of individual birds from site to site within this region, influenced mainly by predation. LBP has been an important site in the past and it is reasonable to expect that it will become important again in the future as other sites become less suitable. The presence of larger numbers of roseate terns nesting at LBP in the past (paragraph 8) indicates a potential for further considerable increases in numbers in succeeding years if predator control efforts are continued.

10. Most roseate terns from the population breeding in the northeastern USA and southeastern Canada stage (gather, rest and roost) in the area around Cape Cod from late July to

mid-September, following the breeding period (see paragraph 7). Total numbers are on the order of 10,000 birds (3,000 breeding pairs plus young of the year and some nonbreeding adults). This is an important period in the life cycle of the species because the young are then learning to feed independently and the birds molt their feathers and lay down energy reserves for southward migration in September.

11. Prior to 1999 LBP was known to be used by staging roseate terns but was thought to be a relatively minor site, with a maximum of 240 birds in August 1988 (Trull et al., ibid.).

5 However, the MAS studies in 2007

-2009 found that it had become a major staging site, with a high count of 4,776 birds (about half the North American population) on September 6, 2007. Numbers fluctuated markedly from day to day and from hour to hour within days, indicating that the birds were moving to and from other staging sites in the Cape Cod region. On some days large numbers of roseate terns arrived at LBP in the evening and apparently spent the night there; on other days large numbers left LBP in the evening and flew towards other roosting sites on Cape Cod. Depending on the level of disturbance at LBP, terns often rested and roosted on offshore sand banks, including Browns Bank.

12. Roseate terns feed on small marine fish. They usually forage within 10

-20 miles of their nesting sites during the breeding season, but range more widely in the post

-breeding period. They usually forage over waters less than 15 feet deep and within 1

-2 miles of the coast (Rock, J. C., M. L. Leonard and A. W. Boyne, Foraging habitat and chick diets of Roseate Tern, Sterna dougallii, breeding on Country Island, Nova Scot ia , Avian Conservation and Ecology, vol. 2, pp.

29-38, 2007. http://www.ace

-eco.org/vol2/iss1/art4/; see also Gochfeld et al., ibid., and Ratcliffe et al., ibid.). They often concentrate over shallow sand bars, in tide rips where tidal currents flow through narrow channels or around headlands, or other locations where turbulent currents bring small fish towards the surface.

13. PNPS is located about four miles from the location on LBP where roseate terns breed in May-July, and about four miles from the locations on LBP and Brown's Bank where roseate terns stage and roost in large numbers in July

-September. It is well within the foraging range of roseate terns from both areas, and also has to be passed by roseate terns from those areas on their way to and from feeding areas down the coast to the southeast. The turbulent water around the two jetties that form the intake and discharge channels at PNPS, turbulence created by regular 6 and periodic cooling water discharges, and the tide rips off Rocky Point (about one quarter mile from PNPS) and Manomet Point (about two miles to the southeast) are expected to be prime locations for foraging roseate terns.

14. From time to time since 1970, I have observed roseate terns feeding along the length of LBP (two to four miles from PNPS), at Manomet Point (two miles from PNPS) and MCCS (less than three miles from PNPS). However, I have not made systematic observations and did not keep detailed notes. Since 2008 Ian Davies, a biologist at MCCS, has observed birds regularly in the area and has kept detailed notes. Besides recording large numbers of roseate terns at LBP, he has records of 51 individual roseate terns on 18 occasions at White Horse Beach, Manomet Point or MCCS, with a maximum of 10 birds at MCCS on August 28, 2011.

I have conferred with Mr. Davies about his observations and have obtained his findings. These findings indicate that, he can expect to see roseate terns on any day in May

-June or August if h e looks offshore while conducting observations at one of these sites. His findings also indicate that he has also regularly observed large numbers of roseate terns staging at LBP in August

-September, in numbers similar to those reported by MAS.

15. I have been asked to comment on whether the relicensing of PNPS for an additional 20-year period would be likely to have an adverse effect on the roseate tern, a federally endangered species. I have specifically been asked to comment on an assertion made by Entergy that license renewal would have "no effect" on the roseate tern, and on the concurrence with this assertion by USFWS. I have reviewed relevant documentation relating to this issue.

16. A letter dated February 3, 2005 from Entergy to USFWS stated, in part, -.the roseate tern nests in colonies along the Massachusetts coast in summer. The roseate tern nests in dune areas with thick vegetative cover, always in association with the common tern.

7 Although suitable nesting habitat has not been identified at PNPS, migrating terns may move through the site in late spring (en route to nesting areas in Maine and Nova Scotia) and late summer (en route to wintering areas in the West Indies and Latin America).

-. We therefore request your concurrence with our determination that license renewal would have no effect on threatened or endangered species (including candidate species and species proposed for listing) and that formal consultation is not necessary.

In 2005, when the USFWS reviewed this request for concurrence from Entergy, USFWS knew or should have known that the statement "migrating terns may move through the site in late spring-and summer-" was incorrect. It was known within the scientific community in 2005 that roseate terns occurred in significant numbers at times at LBP in the staging period in August and September (including late summer, but not exclusively on migration en route to wintering areas). As to nesting, it was also known within the scientific community in 2005 that although roseate terns had not nested at LBP for several years prior to 2005, they had nested there in the recent past and hence were likely to do so again in the future, including during the period proposed for relicensing (2012 to 2032).

If Entergy had been uncertain about the factual basis for their statement, they could and should have sought advice from experts, including the biologists at MCCS on their doorsteps. Moreover, USFWS should have directed them to do so.

17. A reply letter dated March 6, 2005 from USFWS to Entergy stated, in part, "-.. roseate ter ns are known to occur on Plymouth beach just north of PNPS but

- [a]ccording to our records, none of the above

-listed species

[including the roseate tern and bald eagle] are known to frequent the immediate vicinity of PNPS and, therefore, the presence of these species near the power station is probably transient in nature-Since no expansion of existing facilities is planned and no additional land disturbance is anticipated, we concur with your determination that license renewal for PNPS is not likely to adversely affect federally

-listed species-."

USFWS confirmed this determination in a letter to the NRC dated May 23, 2006. Although it may have been correct that USFWS had no "records" in its own files of roseate terns in the immediate vicinity of PNPS, they should have known that their records were incomplete.

USFWS was aware of the history of roseate terns nesting at LBP. As the agency responsible for 8 the recovery of the roseate tern population, USFWS should have known that the roseate tern was likely to nest again at LBP during the period of relicensing, and indeed that restoration of this colony fell within its own goals for recovery of the species.

18. At the time its letter was written in March, 2005, USFWS was aware of the Trull et al. (1999) paper which recorded staging of roseate terns at LBP and should have reviewed that paper in this context. USFWS was aware that MCCS biologists and I had information about roseate terns in the area and should have consulted us. So far as I can determine, USFWS did not raise this issue in meetings of the Recovery Team even as an information item: if they had done so, I and others could have informed them about the occurrence and likely recurrence of roseate terns in the area.

19. The assessments by Entergy and USFWS of potential effects of relicensing on roseate terns were narrowly focused on the movements of terns "through the site", in "the immediate vicinity of PNPS" and "near the power station." Neither Entergy nor USFWS appears to have considered the potential for adverse effects mediated through effects on the food supply of roseate terns over a larger area, in spite of the known fact that the facility continually kills large numbers of fish of the species relied on by roseate terns. Neither Entergy nor USFWS appears to have considered the potential for adverse effects on roseate terns or their fish prey by the pollutants discharged from the facility (see letter dated April 12, 2012, from Ecolaw to

Daniel S. Morris , Acting Regional Administrator , National Oceanic and Atmospheric Administration , National Marine Fisheries Service).

9 20. Although Entergy and USFWS should have been aware that their statements in 2005

-2006 were incorrect, and should have consulted experts if they had been uncertain about the facts, much more information has become available since 2006 and this new information demonstrates a much larger potential for adverse effects than could have been inferred in 2006.

Predator control efforts have been stepped up at LBP, resulting in its colonization and successful breeding by large numbers of common terns; roseate terns have started to nest there again and it is now clear that this site could support important numbers of breeding roseate terns. The studies by MAS have shown that LBP is now a major site for staging roseate terns (supporting at times up to half the entire regional population). Recent field work by Ian Davies has confirmed the previously unquantified information on the presence and feeding of roseate terns in the immediate vicinity of PNPS. The first two of these developments were fully reported at meetings of the Roseate Tern Recovery Team and USFWS was undoubtedly aware of them. USFWS should have revisited its 2005

-2006 conclusion of "no adverse effect" and should have conducted a Biological Assessment. At the least, USFWS should have instituted new field studies to address this issue, or should have required Entergy to do so.

21. If PNPS is relicensed and continues to operate for twenty more years, there is significant potential for adverse effects on roseate terns throughout that period (see paragraph 19). These adverse effects will increase if the number of roseate terns nesting at LBP increases during that period, as is likely (see paragraph 9). These effects could and should have been considered by USFWS during its ESA Section 7 Consultation with the Nuclear Regulatory Commission. In my professional opinion, this is a significant environmental issue and a materially different result would have been likely if the evidence proffered in this affidavit had been considered in a timely fashion.

10

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION _______________________________________ In the Matter of ) Docket # 50-293 LR Entergy Nuclear Generation Company ) Entergy Nuclear Operations Inc. ) Pilgrim Nuclear Power Station ) License Renewal Application ) ______________________________________) Affidavit of E. Pine duBois 1. My name is E. Pine duBois and I live at 93 Elm St., Kingston, which is approximately 8.53 miles from PNPS. I have lived there for almost 17 years. I have lived in Kingston, within 12 miles of PNPS for 37 years. 2. I am the executive director and a cofounder of the Jones River Watershed Association, Inc. (JRWA). JRWA is a 501(c)(3) corporation that was formed power and authority to acquire and preserve natural resources and wildlife areas for the use and enjoyment of present and future generations, to preserve and protect historic sites, to educate the public about the wise use of natural resources, and to work with other organization having the same purposes, JRWA has worked to monitor and improve the habitats and populations of diadromous fishes, including, in particular, river herring. The annual filings for JRWA are complete through corporate year 2010.

2 3. I have been directly involv1985. This involvement has included work on many projects to perform in water research, studies, fish monitoring, etc., that relate to river habitats, and water quality and stream flows, as well as the interrelationship between fresh water rivers and marine ecosystems. As a result of my work, JRWA and I have received numerous awards, grants, and recognition for the work that I led to protect river and marine aquatic ecosystems. As a result of my experience and on the job learning about fisheries in Cape Cod Bay and the Jones River, I have been designated by JRWA to make comments in various regulatory processes, including the relicensing of PNPS. I have also been designated and authorized by JRWA and its members to request a hearing in the above-referenced licensing proceeding before the NRC and/or ALSB. 4. The address of JRWA is Jones River Landing Environmental Heritage Center (Jones River Landing) at 55 Landing Rd. Kingston, not quite 8 miles from PNPS. Jones River Landing is a supporting organization of JRWA. Together, the organizations own three parcels of land totaling about one acre on the Jones River including two historic boatyards. JRWA owns two additional properties within the Jones River watershed containing about 13 acres. 5. Of approximately 219 households that are active members of the JRWA, 215 families live and work within a 50-mile radius of the PNPS. JRWA members live, work and recreate in the Jones River and Cape Cod Bay. Some members raise oysters in the bay and go boating to enjoy fishing, exercise, kayaking and birding. Others raise food crops, including organic cranberries, and 3 produce organic vegetables and animals for home use or sale through Community Supported Agriculture programs; members engage in photography and other forms of artistry requiring nature observation. Many volunteer to help count fish in the annual monitoring program. For the last six years, over 50 JRWA volunteers have maintained a river herring count on the Jones River during the spawning season in April and May. 6. In about 1991, I first became concerned about the potential impact of PNPS upon the fisheries in the Jones River and on the marine aquatic resources of Cape Cod Bay to which the river discharges. I became concerned because of discussions I had with Robert Lawton who worked for MA Division of Marine Fisheries (DMF) to assess the impact of PNPS on the fish populations in Jones River. I became aware of the terrible impact PNPS had on these fish and the need for restoration efforts. 7. Since it was founded, JRWA has taken action to try to improve the water quality of Jones River by soliciting grants to improve flows and storm water discharges so that river herring and other fish could productively spawn. Beginning in 1994, we installed water quality systems at the Elm St. dam and in the estuary to improve water quality in the river, and we established a volunteer monitoring program to find discharges and to sample water quality. At the request of Bob Lawton, Boston Edison supplied JRWA with a grant that helped defray the costs of lab work for this program.

4 8. In the summer of 2000, the Board of Directors determined that JRWA should expand its mission beyond the 30 square mile reach of the Jones River Watershed to include Cape Cod Bay (CCB), and other connected regions in Southeastern Massachusetts. The Jones River is the largest river draining to CCB and the Bay is a critical habitat within the Gulf of Maine. Catadromous and anadromous fish that inhabit the Jones River swim to the river from CCB. This includes the near shore areas in front of PNPS. 9. In 2001, the previous fish ladder at Elm St. dam on the Jones River in Kingston was replaced using state funds with an Alaskan Steep Pass type in order to assist the diadromous fish, and especially the river herring, in migration and spawning. I became a member of the fish committee in Kingston so that I could learn more about the condition of the herring and to assist in improving this important fishery in the Jones River. In 2003, JRWA purchased Jones River Landing and began a closer working relationship with DMF on programs to monitor river herring and other species, including American eels and Sand Tiger Sharks. All these species use CCB seasonally for critical life cycle support including foraging for food, spawning migration, and nursery habitats for their young. All near shore species that enter the Jones River must swim past the PNPS. 10. In the spring of 2005, JRWA began its volunteer monitoring program to count river herring that pass at the Elm Street fish ladder on Jones River under the statewide DMF initiative and training. I went to the initial training and initiated the program in Jones River.

5 11. JRWA knows from our annual counts that the Jones River river herring population is severely diminished in relation to the historic population. A 1926 State Legislative Report, and local anecdotal reports, discuss massive herring populations in Jones River and throughout the region, prior to 1980. One of the first laws of the Commonwealth was to protect the migration of alewives. 12. JRWA has adopted a goal to restore river herring spawning to Silver Lake, which is about 11 miles from PNPS. To do this, JRWA became involved with a region-wide effort to protect the river herring and improve their habitat because of significant populations declines. We work with our partners in the Watershed Action Alliance of Southeastern Massachusetts to secure grants and created an educational kiosk to promote restoration of herring runs by removing dams and restoring rivers in towns and watersheds in the region. 13. Recently, I became aware of the existence and details of the NPDES permit for PNPS that regulates the intake and discharge of once through cooling water from Cape Cod Bay. I learned that the NPDES permit expired in 1996. I tried to find out more about the permit in 2007, and found that there had been no action on the application for NPDES permit renewal filed by Boston Edison in 1995. 14. In 2006 and 2007, I studied reports relative to operations at PNPS to provide comment at the hearings and in writing to the NRC on the PNPS application to renew its operating license for 20 years.

6 15. The reports provided by Entergy show that river herring (blueback herring and alewives) are killed every year at the PNPS facility, and are the third most numerous species impinged over all (Normandeau 2006b). 16. JRWA has continued its herring count every year since 2005 and has reported our results to NOAA and DMF, who are keeping records of other runs in Massachusetts. We also became involved with the Herring Alliance, which is addressing the problem of fisheries by-catch and working to have federal regulations adopted that will prevent the accidental catch of river herring at sea, especially by mid-water trawlers. On its website (http://www.mass.gov/dfwele/dmf/spotlight/river_herring.htm) DMF states that the by-mortality is not sufficient to cause the coastwide decline of the river herring stocks and so there must be other, currently unidentified factors contributing to mortality(Webpage as above, Spotlight: River HerringMoritorium; emphasis added) 17. Starting in 2007, JRWA worked to remove the Wapping Rd. dam in order to enlarge the spawning habitat for river herring upstream, and ultimately to restore river herring to Silver Lake. 18. From 2007 through 2011, JRWA secured grant funds and managed the project to remove the Wapping Rd dam on the Jones River, which was spawning population of river herring. This was the first of three dams being 7 targeting by JRWA. The Wapping Road dam was demolished in September 2011. Local, state and federal funds applied to the five year effort was about 0.75 million dollars. 19. statement prepared under NEPA for PNPS. I attend and provided testimony at the NRC public meetings held in Plymouth, Massachusetts in January 2007. operations on marine aquatic species, diadromous fish, including river, herring, and the overall impact on the health of CCB. 20. In that testimony, JRWA requested that the once through cooling operations at PNPS be improved or that Pilgrim not be re-licensed for another 20 years because of the existing, known impacts of facility operations on marine aquatic resources. 21. -licensing record lacks scientific data sufficient to assess the impact on Cape Cod Bay from PNPS operations. Since protect anadromous and catadromous fisheries in the region, JRWA is harmed if the environmental impact assessment fails to include material and relevant scientific data on impacts to the Bay. 22. At the time, I was aware that the NPDES permit renewal process for PNPS was considering changes and improvements to once through cooling at the facility. JRWA had relied upon U.S. EPA to move forward in a timely manner 8 to renew the PNPS NPDES permit while NRC was reviewing and deciding the parameters for reissuing the resources including endangered, threatened, and candidate species, and fish habitat. JRWA relied on EPA and the NRC to perform their responsibilities in this regard. 23. In the spring of 2011, I contacted EPA to determine where the NPDES process was in review, and obtained the permit that was issued in 1991. In December I asked for an update on their process to issue the permit and to review their file. By early February 2012, JRWA learned: that the NPDES permit process for PNPS was stalled; that the consultation process under the Endangered Species Act between NMFS and the NRC had not been concluded on the NRC 2006 Biological Assessment; that the NRC has not completed an Essential Fish Habitat Assessment for Alewives, blueback herring, Rainbow smelt that migrate through CCB, past the PNPS and into Jones River, a designated EFH; and that Atlantic sturgeon is now proposed for listing as endangered under the ESA by NOAA. Further, we learned that, in November 2011, river herring had been designated as a candidate species by NMFS. 24. On February 6, 2012, JRWA sent a letter to NMFS to request a copy of their concurrence letter with the NRC biological assessment and PNPS GEIS conclusions regarding Endangered Species and EFH. A copy is attached hereto as Exhibit 1. JRWA sought to determine if NMFS had completed its consultation with the NRC on the Biological Assessment. JRWA also raised 9 concerns about the overall impact of PNPS operations on the marine aquatic resources in Cape Cod Bay, and informed NMFS of significant informational and data gaps in the BA. JRWA has not received any written reply to this letter or evidence of NMFS formal concurrence. 25. On March 2, 2012 an acquaintance sent me an electronic copy of a NRC letter dated February 29, 2012 to NMFS requesting their concurrence on the Atlantic Sturgeon. JRWA has not received any notice from the NRC on this issue. 26. he Jones River and Cape Cod Bay, and its ability to carry out its mission is harmed by the following issues relating to year re-licensed period: (a) The absence of NMFS concurrence on 2006 Biological Assessment and the failure to include results of the ESA § 7 process in the final GEIS; (b) the incomplete ESA § 7 process on Atlantic sturgeon; (c) the lack of an Essential Fish Habitat Assessment and compliance with the consultation provisions of the Magnuson Stevens Fisheries Act; (d) the lack of information on river herring, and (e) the lack of information in the GEIS on these issues. 27. The information referred to in the preceding paragraph is critical to fully assessing the impacts of the continued operation of PNPS for 20 more years on the interests of JRWA in the marine aquatic resources in Cape Cod Bay that are linked to the Jones River.

10 Executed in Accord with 10 C.F.R. 2.304(d) on March 6, 2012 E. Pine duBois 55 Landing Road Kingston MA 02364 781-585-2322 Email: pine@jonesriver.org March 6, 2012 1 ECOLAW P. O. BOX 380083 CAMBRIDGE, MA 02238 contact@ecolaw.biz April 24, 2012 Daniel S. Morris Acting Regional Administrator National Oceanic and Atmospheric Administration National Marine Fisheries Service Northeast Region 55 Great Republic Drive Gloucester, MA 01930

-2276 April 3, 2012 Re: ESA 7 Consultation with Nuclear Regulatory Commission

Entergys Pilgrim Nuclear Power Station, Plymouth, Massachusetts

Dear Mr. Morris,

This is to request that National Marine Fisheries Services (NMFS) consider the following information in connection with its consultation under the Endangered Species Act (ESA), 16 U.S C. 1531

-1544, with the Nuclear Regulatory Commission (NRC) regarding the NRC Staff 2006 Biological Assessment (2006 BA) and 2012 supplemental Biological Assessment (2012 BA) for the relicensing of Entergy Corporations Pilgrim Nuclear Power Station (PNPS). These comments relate to all species and critical habitat identified in the 2006 BA and the 2012 BA, the petition to expand the critical habitat for North Atlantic right whales (Eubalaena glacialis

), 1 and species protected under the Marine Mammal Protection Act, 16 U.S.C. 1371

-1421h. These comments are submitted on behalf of Pilgrim Watch and a network of other environmental and citizen action groups.

These comments show that there is inadequate data about pollution impacts on ESA

-listed species and critical habitat from PNPS operations over a 60

-year period. As shown below, for 40 years, PNPS has been discharging chemical pollutants, including chlorine, corrosion inhibitors, and potentially metals from corroding pipes and infrastructure into Cape Cod Bay. There is a startling lack of data about the quantities and identity of pollutants released and to be released, how these chemicals reformulate once they are released, and how their toxicity may be affected by Entergys thermal plume. The NRC staff admits that there has been no testing for water quality, and only four samples taken of sediments. Regulatory oversight of the discharge of toxic chemicals to the environment from PNPS over the past 40 years has been lax or non

-existent. There is no way to assess the baseline to determine the effects of these toxic discharges during the future relicensing period. Essentially, the NRC

1 75 Fed. Reg. 61690, 61691 (Oct. 6, 2010)(Notice of 90

-day petition finding that the petition presents substantial information indicating that the revision of the critical habitat is timely and appropriate.)

2 staff and Entergy assert that because there no data showing harm, there is any harm, and no effects ESA

-listed species and critical habitat. However, an absence of data does not prove there are no effects. We request that NMFS address and respond to each of the issues here in its ESA 7 determination for PNPS relicensing.

2 PNPS Water Pollution For the past 40 years, PNPS has discharged pollutants, at least including chlorine and metals, from PNPS to Cape Cod Bay. Neither the 2006 and 2012 biological assessments nor the PNPS EIS 3 address the effect of these contaminants on the water quality and sediments in Cape Cod Bay. For example, there is no indication of whether 40 years worth of chlorine/biocides, metals, and by

-products of corrosion inhibitors have bio

-accumulated in the ambient environment or reformulated, nor is there any description of the potential cumulative and synergistic effects of 60 years (40 years of operations plus 20 more years) of these discharges combined with the thermal plume. Neither the PNPS EIS nor the biological assessments identify the total volume of chemicals discharged to Cape Cod Bay over the past 40 years, or the total volume to be discharged over the next 20 years. Instead, Entergy and the NRC staff hide behind controversial impingement and entrainment body counts of fish, larvae, fish eggs, etc. and attempt to pass this off as an analysis of the effects of the action for ESA 7 purposes.

The PNPS EIS states that there are no water quality samples to document the ambient water quality

At the site audit of May 2006, the NRC staff was informed that analytical data for surface water and sediment have not been collected regularly by Entergy or its predecessor, Boston Edison, at the PNPS facility

. PNPS EIS, 2.2.5.2 , Chemical Contaminants near PNPS , p. 2-30. To reach conclusions about the impacts of 40 years of chlorine, metal, and other pollutant discharges on Cape Code Bay sediments and water quality, the NRC staff relies primarily on four soil sediments taken at the intake channel, not the discharge channel or the surrounding area, that are about 20 years old.

These glaring data gaps render the PNPS EIS wholly inadequate for ESA purposes.

The NRC staff supplements this miniscule amount of data with a 11 months of NPDES discharge monitoring reports out of the 480 months that PNPS has been operating

- to conclude that Entergys pollutant discharges have no effect, or no significant effect, on the environment. Eleven months of DMRs for pollutants collected at the discharge point cannot

2 We note that many of these issues were raised in comments on the draft PNPS EIS, and that the NRC staff response consisted merely of references to the NRCs generic EIS for power stations, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (NUREG

-1437 Vol. 1), Part 4, Environmental Impacts of Operation http://www.nrc.gov/reading

-rm/doc-collections/nuregs/staff/sr1437/v1/part04.html

. 3 Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants, Supplement 29, Regarding Pilgrim Nuclear Power Station, Final Report, July 2007, NUREG

-1437, and its Appendices. (NUREG-1437). Available on line: http://www.nrc.gov/reading

-rm/doc-collections/nuregs/staff/sr1437/supplement29/index.html; Vol. 1 ML071990020; Vol. 2 Appendices ML071990027.

3 be used as evidence that PNPS pollutant discharges are not likely to effect ESA

-listed species and critical habitat. The absence of data does not prove that there is, has been, and will be, no adverse effects on the marine aquatic environment.

4 Further, 11 months of DMRs do not show levels of pollutants in the ambient sediment and water quality, but only sample the pollution as it is coming out of the pipes into Cape Cod Bay.

This lack of data on ambient pollution levels raises serious concerns about the ability of NMFS to adequately determine the effects of the action, as defined by 50 C.F.R. 402.02, on ESA

-listed species and critical habitat, absent credible, scientific data about the nature and extent of PNPS chemical discharges, current conditions in Cape Cod Bay, and the future effects of these discharges.

The complete inadequacy of the PNPS EIS is further exposed by the fact that under the NRCs NEPA regulations, the NRC staff can avoid assessing site specific impacts of 60 years of discharges of chlorine, metals, corrosion inhibitors, etc., because the discharge of chlorine or other biocides, and other metals is a Category 1 Issue. 10 CFR Part 51, Subpart A, Appendix B, Table 1

-B; PNPS EIS, p. 4

-2, T able 4-1. This means unless the NRC staff decides the there is new and significant information about these topics, it can rely solely on the NRCs generic EIS for an evaluation of the impacts to draw conclusions about PNPS impacts on Cape Cod Bay. Not surprisingly, the NRC staff and Entergy together decided there was no new and significant information warranting further inquiry into the effects of 60 years of chlorine, biocides, and metal discharges.

This allows PNPS relicensing to avoid a site

-speci fic inquiry into the effects of chlorine, biocides, and metal discharges on ESA

-listed species and critical habitat.

5 This conclusion is entirely devoid of any factual basis: as the NRC admits in the PNPS EIS, there has been no water quality sampling an d only four sediment samples for pollutants covered under the Clean Water Act, and these were from the intake embayment.

The NRC generic EIS for nuclear plant relicensing describes in general the potential negative environmental impacts of discharges of c hlorine and other biocides, metals such as copper, zinc, chromium from corroding pipes and tubes. (Since PNPS uses a corrosion inhibitor, and had to almost entirely replace corroded pipes in about 1984, corrosion of metal piping is obviously an issue at th e facility). The relevant portion of the NRCs generic EIS is recited here:

4 The NRC reviewed less than a year of monthly DMRs, April 2005 to March 2006, which are not publicly available on line and not in the NRC electronic database, and found three violations in the 11

-month period (thus, over 25% of the time Entergy was in noncompliance). Two violations were for chlorine.

5 The NRC staff concluded there would be no significant impacts of discharge of chlorine or other biocides, and no impacts of other metals during the renewal term beyond those discussed in the GEIS. PNPS EIS, Section 4.0, p. 4

-5, and that impacts from continued discharge of chlorine and other metals over the next 20 years would be SMALL and additional plant

-specific mitigation measures are not likely to be sufficiently beneficial to be warranted. PNPS EIS p. 4

-2.The NRCs regulations assign three significance levels to environmental impacts.

SMALL is defined as environmental effects that are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource. PNPS EIS, iviii. Table B

-1 of 10 CFR Part 51, Subpart A, Appendix B.

4 4.2.1.2.4 Chemical Effects Some of the water quality issues that have been raised are potential chemical effects resulting from discharges of chlorine or other biocides, small-vo lume discharges of sanitary and other liquid wastes (Chapter 2), chemical spills, and heavy metals leached from cooling system piping and condenser tubing.

Impacts of chemical discharges to water quality are considered to be of small significance if discha rges are within effluent limitations designed to ensure protection of water quality and if ongoing discharges have not resulted in adverse effects on aquatic biota.

The discharged chemicals, including chlorine and other biocides, are regulated by the NPDES permit of each nuclear power plant. Regulatory concern about toxic effects of chlorine and its combination products , as well as operating experience with control of biofouling, has led many plants to eliminate the use of chlorine or reduce the amount used below those levels that were originally anticipated in the environmental statements associated with issuing the construction permit and operating license. Some power plants use mechanical cleaning methods or, because of the abrasive properties of particul ates in the intake water, do not have to clean the condenser cooling system at all.

Other plants chlorinate the condenser cooling or service water systems but can isolate certain portions for treatment (e.g., a single unit of a multi

-unit plant), thereby a llowing dilution to reduce the concentration of chlorine in the discharge.

Because of these refinements and the process for modifying NPDES permit conditions as needed, water quality degradation from existing biocide usage at once

-through nuclear power pla nts is not a concern among the regulatory and resource agencies consulted for this GEIS.

Based on review of literature and operational monitoring reports, consultations with utilities and regulatory agencies, and comments on the draft GEIS, water quality e ffects of discharge of chlorine and other biocides are considered to be of small significance for all plants.

Small quantities of biocides are readily dissipated and/or chemically altered in the receiving water body so that significant cumulative impacts t o water quality would not be expected.

No change in operation of the cooling system is expected during the license renewal term, so no change in the effects of biocide discharges on receiving water quality is anticipated. Effects of biocide discharges coul d be reduced by increasing the degree of discharge water treatment, reducing the concentration of biocides, or by treating only a portion of the plants' cooling and service water systems at one time.

However, because the effects of biocide discharges on wa ter quality are considered to be impacts of small significance, the staff does not consider the implementation of these potential mitigation measures to be warranted.

Discharge of chlorine and other biocides is a Category 1 issue. Discharges of sanitary wa stes are regulated by NPDES permit, and discharges that do not violate the permit limits are of small significance.

5 Minor chemical spills or temporary off

-specification discharges from sanitary waste treatment systems and other low

-volume effluents (e.g., excessive coliform counts or total suspended solids levels, pH outside of permitted range) were cited as common NPDES permit violations in the utility responses to the NUMARC survey (NUMARC 1990). Such NPDES noncompliances have been variable, random in oc currence, and readily amenable to correction. These minor discharges or spills do not constitute widespread, consistent water quality impacts. Water quality effects of minor chemical discharges and spills are of small significance and do not have significa nt effects on aquatic biota for all plants and have been mitigated as needed.

Significant cumulative impacts to water quality would not be expected because the small amounts of chemicals released by these minor discharges or spills are readily dissipated i n the receiving water body.

Spills and off

-specification discharges occur seldom enough that regulatory agencies express no concern about them for operating nuclear power plants. While there may be additional management practices or discharge control devic es that could further reduce the frequency of accidental spills and off

-specification discharges, they are not warranted because impacts are already small and occur at low frequency and because such mitigation would be costly. The water quality impacts of permitted sanitary waste water and minor, nonradiological chemical discharges and spills are a Category 1 issue. Heavy metals (e.g., copper, zinc, chromium) may be leached from condenser tubing and other heat exchangers and discharged by power plants as s mall-volume waste streams or corrosion products.

Although all are found in small quantities in natural waters (and many are essential micronutrients), concentrations in the power plant discharge are controlled in the NPDES permit because excessive concentr ations of heavy metals can be toxic to aquatic organisms.

Discharge of metals and other toxic contaminants may also be subject to individual control strategies developed by the states to control toxic pollutants under the 1987 Amendments to the CWA. These strategies for point source discharges of toxic pollutants are implemented through the NPDES permit program. Langford reviewed the literature concerning heavy metal discharges from power plants and concluded that, during normal operations, concentrations g enerally are below the levels of detection.

However, plant shutdowns for testing and refueling keep stagnant water in contact with condenser tubes and other metal structures for extended periods and could allow abnormally large amounts of metals to be leac hed. For example, Harrison et al. (DOE/ER

-0317) detected elevated copper concentrations in the discharge during startup of Diablo Canyon Nuclear Power Station.

Abalone deaths in the discharge area of the Diablo Canyon were attributed to high copper concent rations in the effluent following a shutdown period (Martin et al. 1977).

6 The ability of aquatic organisms to bioaccumulate heavy metals even at low concentrations has led to concerns about toxicity both to the biota and to humans that consume contaminated fish and shellfish.

For example, bioconcentration of copper discharged from the Chalk Point Plant (a fossil

-fuel power plant on Chesapeake Bay) resulted in oyster "greening" (Roosenburg 1969). Bioaccumulation of copper released from the H. B. Robinson Pla nt resulted in malformations and decreased reproductive capacity among bluegill in the cooling reservoir (ASTM STP 854); see Section 4.4.3. In all three of these examples of excessive accumulation of copper (Diablo Canyon, Chalk Point, and H.

B. Robinson), replacement of the copper alloy condenser tubes with another material (e.g., titanium) eliminated the problem.

Concentrations of heavy metals in the discharges of once

-through nuclear power plants are normally within NPDES permit limits and are quickly di luted or flushed from the area by the large volumes of the receiving water.

Discharge of metals and other toxic contaminants may also be subject to individual control strategies developed by the states to control toxic pollutants under the 1987 Amendments to the CWA. These strategies for point source discharges of toxic pollutants are implemented through the NPDES permit program. Excessive discharges of metals have been corrected at the two nuclear power plants (Diablo Canyon and H. B.

Robinson) that experi enced problems during the original license period.

Impacts of heavy metal discharges are considered to be of small significance if water quality criteria (e.g., NPDES permits) are not violated and if aquatic organisms in the vicinity of the plant are not b ioaccumulating the metals.

Based on review of literature and operational monitoring reports, consultations with utilities and regulatory agencies, and comments on the draft GEIS, discharge of heavy metals leached from the condenser cooling system has been a problem at only Diablo Canyon and H. B.Robinson nuclear power plants, and mitigation was effective in both cases.

Although cumulative impacts could result from the long

-term accumulation and bioaccumulation of heavy metals, mitigation for individual plan t effects has also reduced the potential for contributions to cumulative effects. Monitoring has not revealed a continuing problem with accumulation of heavy metals.

No change in operation of the cooling system is expected during the license renewal term, so no change in metal concentrations in the cooling water discharge is anticipated. Effects of elev a ted metal concentrations could be reduced by replacing condenser tubes with alloys that are less likely to corrode. However, because the effects of metal co ncentrations on cooling water discharges are considered to be impacts of small significance and because the potential mitigation measures would be costly, the staff does not consider the implementation of these potential mitigation measures to be warranted. Elevated heavy metal concentrations in the condenser cooling water discharge is a Category 1 issue. (emphasis supplied)

7 Chemical pollution of the environment from nuclear station effluent discharges to water bodies is also discussed in EPAs 309 Revi ewers Guidance for Nuclear Power Plant Environmental Impact Statements, Sept. 2008, EPA Publication No. 316

-X-08-001. Among other things, this Guidance document explicitly states that nuclear power plant effluent usually contains chromium. P.6

-30. Ther e is no analysis in the PNPS EIS of whether chromium is discharged from PNPS.

Against this description of potential for environmental contamination, and sightings of North Atlantic right whales swimming within one

-half mile of PNPS, the NRC staff and En tergy continue to claim that there will be no effects to ESA

-listed species and critical habitat from PNPS relicensing. We note further that there two big ifs identified in the GEIS regarding impacts of metals:

if NPDES permits are not violated, and if aquatic organisms are not bio

-accumulating the metals , the impacts are small. Here, no testing for metals is documented in the PNPS to show concentrations in the effluent, and there is no data to show whether or not there has been bioaccumulation of metals in the aquatic organisms.

Moreover, as shown below, Entergy regularly violates its NPDES permit.

The scale of this issue is reflected by an industry source, which puts it this way: The typical multi

-plant utility spends millions of dollars a year on bleach, bromide, and other biocides to keep heat

-exchange surfaces clean and to control biofouling in cooling systems. Proper use of this style of chemical warfare begins with understanding the enemy Biofouling control for cooling systems, Daniels, D. and Selby, T., Sept. 15, 2007, Power: Business and Technology for the Global Generation Industry.

Point source pollutant discharges at PNPS PNPS has 7-point source discharge locations. PNPS EIS, Table 2

-2, page 2-24. The key chemical discharges of concern for purposes of this letter are biocides, metals, and corrosion inhibitors. (In addition, we are concerned about metals leaching from aging pipes into Cape Cod Bay, both at the direct discharge points and indirectly through groundwater transport from buried pipes, and radionuclides as discussed in our earlier letter to NMFS.) These are addressed below.

The Entergy NPDES permit allows the use of chlorine as a biocide. It states that use of any molluscide is subject to pre

-approval by EPA and the state. 1994 modified permit, A.1.a.1-3. Chlorine is discharged at least two locations at PNPS. Outfall 001 (condenser cooling water) discharges 510 million gallons per day (maximum daily) contaminated with chlorine discharges 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> per day, unless regulators specify otherwise. Outfall 010 (service cooling water) is continuously chlorinated, and has a discharge limit of .50 mg/l average monthly, or 1.0 mg/l daily maximum. The permit limit is 19.4 million gallons average monthly discharge, no daily maximum. See, e.g. PNPS EIS, Table 2

-2. It is unclear what type of chlorine product Entergy is using and has been using over the 40 year period, or what it plans to use during relicensing. A May 24, 2002 letter from EPA to Entergy allows the use of sodium hypochlorite, but permit says sodium pentaborate. NPDES permit, p. 6.

8 Sodium nitrate used for dechlorination is discharged from 011 (makeup water and demineralizer waste discharge).

Entergy apparently uses tolyltriazole as a corrosion inhibitor. By letter dated June 30, 1995, EPA approved its use.

6 There is no specific information in the PNPS EIS regarding the frequency, concentrations, or environmental impacts of the use of this chemical. Instead, the PNPS merely refers back to the NRCs GEIS, Section 4.2.1.2.4. Metals As noted above, the NRC GEIS states, Heavy metals (e.g., copper, zinc, chromium) may be leached from condenser tubing and other heat exchangers and discharged by power plants as small

-volume waste streams or corrosion produc ts. However, the PNPS NPDES permit contains no specific effluent limits for these or any other metals. PNPS EIS does not require regular testing for metals in the effluent. Page 3, Permit 1991 p. 3 contains the boilerplate statement, there shall be no discharge of treated or untreated chemicals which result from cleaning or washing of condensers or equipment wherein heavy metals may be discharged. There are other general, boilerplate reporting provisions for metals and other toxics on page 4 of the N PDES permit, but the PNPS EIS does not indicate that the effluent was ever tested for metals.

Violations of NPDES Discharge Limits The PNPS EIS and the 2006 and 2012 biological assessments rely on the erroneous assumption that Entergy is in complianc e with its NPDES permit. New and significant information shows that this is not the case, and that state and federal regulators have failed to address these violations. Moreover, it is clear that the NPDES permit fails to require testing of a significant number of parameters, and cannot be relied upon to give an accurate picture of what chemical pollutants may be in the water and sediments at the PNPS site.

The PNPS EIS looked only at NPDES discharge violations from April 2005 to March 2006, and found 3 violations, one for total suspended solids and two for chlorine at the screenwash dechlorination system at Outfall 003. PNPS EIS, 2.2.3. More recent data from EPAs website indicates that for 5 of the last 12 quarters Entergy has been out of compliance its NPDES permit.

There have been 5 violations of the chlorine limit, in the last 12 quarters:

Chlorine violations at Outfall 010:

Jan.-March 2010

-exeeded by 3%

Oct.-Dec. 2012-exceeded by 140%

6Apparently there is a typo in the EPA letter, because it is spelled tolytriazole, not toly ltriazole; the former is a well-known corrosion inhibitor.

9 April-June 2011-exceeded by 3%

July-Sept. 2011

-exceeded by 15

% Chlorine violations at Outfall 001:

Oct. to Dec. 2011

-exceeded by 40%

Thus, the record shows a pattern of non

-compliance, not compliance as the PNPS EIS claims. Information from EPA website:

http://www.epa

-echo.gov/cgi

-bin/get1cReport.cgi?tool=echo&IDNumber=110000736810 Research to be considered regarding effects of PNPS pollutant discharges on ESA

-listed species and critical habitat Research has been done on the impacts of metals on calanoid copepods, the main food supply for North Atlantic right whales. See, e.g., Relating the reproductive toxicity of five ingested metals in calanoid copepods with sulfur affinity, Hook, S., et al., Marine Environmental Research, Vol. 53, Issue 2, March 2002, pp. 161

-174. At least one study on the impacts of copper on copepods and other zooplankton shows reduced activity. Experimental Observations on the Effects of Copper on Copepods and Other Zooplankton: Controlled Ecosystem Pollution Experiment, Reeve, M.R., Gamble, J.C., and Walter, M.A. Bulletin of Marine Science, Vol. 27, No. 1, Jan. 1977, U of Miami.

The introduction of low levels of copper, chlorine, and thermal elevation causes significant changes and species composition of natural phytoplankton. Sanders, J, et al., Woods Hole Oceangraphic Institution, 2003, Journal of Experimental Marine Biology and Ecology, Vol. 49, Issue 1, pp 81

-102. Effects of copper, chlorine, and thermal addition on the species composition of marine phytoplankton.

The corrosion inhibitor used by Entergy at PNPS, t olyltriazole

, can be considered a ubiquitous contaminant in the aquatic environment.

Marine Pollution and Human Health , Issues in Environmental Science and Technology , Environ Sci Technol 2011 May 1; 45(9): 3858

-61 21524137 , Royal Society of Chemistry p u blishing., ed. By RE Hester, RM Harrison. These authors conclude that due to their physiochemical properties (i.e. low biodegradability and high hyrophobicity), they a re not removed from sewage treatment plants, and coupled with their toxicity, pose a treat to estua rine and coastal environments.

Other articles relevant articles:

Impacts of Copper on Aquatic Ecosystems and Human Health, (copper is one of the most toxic metals to aquatic organisms and ecosystems), Solomon, F, http://magazine.mining.com/Issues/0904/ImpactsCopperAquaticEcosystemsHumanHealth.pd

10 Toxicity of a Mixture of Ten Metals to Phytoplankton, Thomas, W.H. et al.

Marine Ecology , Vol. 2: 213

-220, 19 80 , at http://www.int

-res.com/articles/meps/2/m002p213.pdf Chlorination for power plant biofouling control: potential impact on entrained phytoplankton

, International Journal of Environmental Studies , Vol. 67, Issue 4, 2010, http://www.tandfonline.com/d oi/abs/10.1080/00207233.2010.495214?journalCode=genv 20 Cooling water chlorination and productivity of entrained phytoplankton

, E. J. Carpenter , B. B. Peck et al., Marine Biology , Vol. 16, No. 1 (1972), pp 37

-40, DOI: 10.1007/BF00347845 (With t he addition of chlorine at 1.2 ppm at cooli ng water intake, there was an 83% decrease in productivity as compared with the productivity at the intake. Productivity measurements were made at 6 other continuously applied chlorine concentrations. At the lowest concentration tested, too low to measure with our analytical method (addition of chlorine at 0.1 ppm at the intake), we measured a production decrease of 79%.)

Impacts of chlorination and heat shocks on growth, pigments and photosynthesis of Phaeodactylum tricornutum (Bacillariophyceae)

Journal of Experimental Marine Biology and Ecology, Vol. 397, Issue 2, Feb. 2011, pp. 214

-219, Zengling, Ma, et al. (It indicated that both chlorination and heat shocks had negative impacts on the primary producers living in discharging coastal waters; furthermore, there were synergistic effects of heat shocks on chlorination toxicity.)

Chlorinated cooling waters in the marine environment: Development of effluent guidelines

, Capuzzo, J., et al , Woods Hole Oceanographic Institution, Woods Hole, MA 02543, U.

S.A. (2003) (The effects of free chlorine and chloramine on stage I lobster larvae and juvenile killifish were investigated in continuous flow bioassay units. In comparing mortality and changes in standard respiration rates during and after exposure to eit her chlorine form, significant respiratory stress was observed with exposure to sublethal levels. Sublethal responses to free and combined chlorine should be considered when establishing regulations for chlorine residuals in cooling waters.)

Reduction of marine phytoplankton reproduction rates by copper and cadmium

, Journal of Experimental Marine Biology and Ecology , Vol. 96, Issue 3, 1986, pp 225-250, Brand. E, et al.; http://onlinelibrary.wiley.com/doi/10.1111/j.1529

-8817.2012.01133.x/abstract

- The E ffects of Iron and Copper Availability on the Copper Stiochiometry of Marine Plankton, Jian Guo , et al., Journal of Phycology , Vol. 48 , Issue 2 , pp. 312325 , April 2 012 11 For background on the range of behaviors and toxicity of biocides used in power plants see, the UK Marine SAC Project website, http://www.ukmarinesac.org.uk/activities/water

-quality/wq8_28.htm. There are studies showing the ecot oxicity in marine waters of the sodium hypochlorite that Entergy discharges to Cape Cod Bay at PNPS.

D egradation models and ecotoxicity in marine waters of two antifouling compounds: sodium hypochlorite and an alkylamine surfactant.

Sci. Total Environ.

2010 Mar 15; 408(8):1779-85. Lopez-Galindo, C. et al., Department of Environmental Technologies, Centro Andaluz de Ciencia y Tecnolog'a Marinas (CACYTMAR), Universidad de Cdiz, Campus R'o San Pedro, Cdiz, Spain.

Toxicity of Chlorine Dioxide to Early Life Stages of Marine Organisms, Hose, J., et al., Bull.Environ.Contam.Toxicol. (1989) 42:315

-319. From dishwasher to tap? Xenobiotic substances benzotriazole and tolyltriazole in the environment. Hussein, J., et al

., Institute for the Environment, Brunel Un iversity, Uxbridge, UK. (There is increasing evidence that the use of chemicals frequently results in widespread environmental contamination with little understanding of the toxicological implications. The lack of a complete set of good quality (eco)toxicological data on possible chronic effects of these high use chemicals should caution against using them in a manner which may have contributed to such widespread environmental contamination

.) Benzotriazole and Tolyltriazole as Aquatic Contaminants

Input and Occurrence in Rivers and Lakes W. Giger, C. Schaffner, HP. Kohler (2006):

Environ. Sci.

Technol. 40, 71867192. PMID 17180965 Environmental Baseline Under the ESA, NMFS must look at the environmental baseline in determining the effects of the action. The lack of data on zooplankton and calunoid copepods is of concern.

The PNPS EIS relies on the ENSR 2000 report for a discussion of zooplankton baseline. This document was only released to the public by the NRC on April 17, 2012. This report shows zooplankton sampling results of densities for a period between 1973 and 1975, at several locations around the site and in Cape Cod Bay. There is no data after 1975 to show what the zooplankton densities are at these sampling sites currently, or were at the time the BAs were prepared.

PNPS water pollution impacts on ESA

-listed species and critical habitat ESA-listed species have the potential to be exposed to adverse effects from PNPS via direct exposure to the pollutants discharged from the facility, and via the uptake of these contaminants in their food supply. Water quality is important to right whales (See, April 12, 2012, memorandum from Stormy Mayo, PCCS to JRWA, previously submitted to NMFS).

12 Entergy's Stone & Webster report from NRC, fig. 2

-25 shows the PNPS thermal plume extending about 1.25 nautical miles (about 1.4 mi les) from the shoreline. On April 17, 2012, North Atlantic right whales were sighted within one

-half mile of PNPS.

Figure 1. Sighting location of 3 North Atlantic Right Whales on 4/17/12. Red circle = 0.5 mile radius. Source: NOAA North Atlantic Right Whale Sighting Survey and Sighting Advisory System (http://www.nefsc.noaa.gov/psb/surveys/

) In a letter to the Town of Plymouth, NMFS indicated that compliance with water quality standards was impor tant because sea turtles were found in the area.

Exhibit 1. In sum, we request that NMFS address whether the PNPS EIS contains adequate data to determine whether 60 years of chemical discharges from PNPS to Cape Cod Bay is likely to adversely effect all ESA-listed species, and critical habitat.

Thank you in advance for consideration of this information.

Very truly yours, Signed Electronically Margaret Sheehan, Esq.

Anne Bingham, Esq.

cc:

13 Governor Duval Patrick Massachusetts Office of Coastal Zone Management Whale and Dolphin Conservation Society Provincetown Center for Coastal Studies Mass DEP U.S. EPA, Region 1 Conservation Law Foundation Rep. Edward Markey Rep. Keating Rep. Dan Wolf New England Aquarium Jones River Watersh ed Association Pilgrim Watch Pilgrim Coalition Cape Cod Bay Watch Pew Herring Alliance MassAudubon Goldenrod Foundation