ML12135A617

Jones River Watershed Association and Pilgrim Watch Request for Hearing and to File New Contentions and Jrwa Motion to Intervene on Issues of: Violation of State and Federal Clean Water Laws; Lack of Valid State Section 401 Water Quality...

ML12135A617
Person / Time
Site:	Pilgrim
Issue date:	05/14/2012
From:	Anne Bingham, Lampert M, Sheehan M Jones River Watershed Association, Pilgrim Watch
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22439, 50-293-LR, ASLBP 12-917-05-LR-BD01
Download: ML12135A617 (93)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY 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 (JRWA) AND PILGRIM WATCH (PW)

REQUEST TO REOPEN, FOR A HEARING, AND TO FILE NEW CONTENTIONS AND JRWA MOTION TO INTERVENE ON ISSUES OF:

(1) VIOLATIONS OF STATE AND FEDERAL CLEAN WATER LAWS; (2) LACK OF VALID STATE § 401 WATER QUALITY CERTIFICATION; (3) VIOLATION OF STATE COASTAL ZONE MANAGEMENT POLICY; and (4) VIOLATION OF NEPA Filed May 14, 2012 1

I. Executive Summary Pursuant to 10 C.F.R§ 2.309 and § 2.326, Petitioners Jones River Watershed Association, Inc. (JRWA) and Pilgrim Watch (PW) move to reopen the record to file a new contention and request a hearing on new and material information establishing that Entergys application for relicensing of Pilgrim Nuclear Power Station (PNPS) should be denied because Entergy lacks two state approvals that are prerequisites to relicensing, is violating state and federal water pollution control laws, and the PNPS environmental impact statement is invalid. Without these state approvals, and because it is violating state and federal water pollution laws, PNPS cannot be relicensed because Entergy cannot satisfy NRC regulations at 10 C.F.R. 54.29(a)(b), 10 C.F.R. Part 51 (environmental reports) and the NRC cannot ensure that the renewed license will identify the obligations of the licensee in the environmental area, 10 C.F.R. 54.33(3).

Petitioners evidence shows that Entergy does not have a valid consistency certification under the Coastal Zone Management Act, 16 U.S.C.S. §§ 1451 et seq. (CZMA), a valid state § 401 water quality certification under the federal Clean Water Act (CWA), 42 U.S.C.S. § 1341 (a)(1), or a current CWA 316(a) variance or 316(b) determination as required by the NRC regulation at 10 C.F.R. 51.53(c)(3)(ii)(B), and specifically that:

(1) Entergy is in violation of the state Clean Waters Act, M.G.L. c. 21, §§ 26-53 (State Act),

314 C.M.R. 4.05(4)(a)(2)(d), because does not have a state permit to operate its cooling water intake structure (CWIS), which uses almost .5 billion gallons per day of sea water from Cape Cod Bay; 2

(2) Entergy is violating the State Act and federal CWA because it does not have a state or federal permit to discharge tolytriazole to Cape Cod Bay, and PNPS has been discharging tolytriazole to Cape Cod Bay illegally since 1995, up to and including 2012; (3) Entergy does not have a state permit to discharge radioactive effluent to Cape Cod Bay as required by 314 C.M.R. 4.05(5)(d);

(4) Entergy does not have authority to violate the state ban on killing river herring as set forth in 322 C.M.R. 6.17(3); and (5) Federal Endangered Species Act, 16 U.S.C. §§ 1531 et seq., issues have not been resolved as required by 10 C.F.R. 51.53(c)(3)(ii)(E).

Due to the environmental impacts of the failure to comply with state and federal environmental permitting and approval requirements as set forth in above, the PNPS National Environmental Policy Act, (NEPA), 42 U.S.C. §§ 4321 et seq. environmental impact statement is incomplete and must be supplemented. Moreover, while the NRC may rely on its generic environmental impact statement regulations for operating relicensing renewal, these regulations truncate any meaningful NEPA analysis for purposes of assessing the environmental impacts for purposes of state permits, the Endangered Species Act, and CZM certification, and therefore the PNPS EIS is wholly inadequate.

Petitioners seek to reopen the 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), the provisions for discretionary intervention under 10 C.F.R. §2.309(e) and that this contention 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 exceptionally grave issues. These exceptionally grave 3

issues include but are not limited to: lack of valid state CZM certificate, lack of valid state § 401 water quality certification, lack of a state permit to operate a CWIS, unpermitted discharges of pollutants, prima facie violations of state water quality standards designed to protect Cape Cod Bay as a Class SA use 1 due to the lack of a CWIS permit and unpermitted pollutant discharges and violation of the ban on killing river herring; and failure to comply with the ESA Section 7 including failure to assess the significant potential for impact on the endangered roseate tern 2 and potential effects on other endangered species for which federal review by NOAA is incomplete. 3 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, even if timeliness is considered, new and significant information warrants reopening.

II. Factual Background and Statutory Framework 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 that Entergy lacks necessary approvals that are prerequisites to relicensing. For these reasons, the PNPS Final Supplemental Environmental 1 Under state water quality standards, a Class SA water body is an excellent habitat for fish, other aquatic life and wildlife, including for their reproduction, migration, growth and other critical functions, and for primary and seconardy contact recreation. and has excellent aesthetic value..

2 See, Affidavit of Ian Nisbet, Ph D., submitted with Petitioners May 2, 2012, Motion to Reopen and to File a New Contentionon Violations of the Endangered Species Act with Regard to the Roseate Tern, May 2, 2012.

3 See, Petitioners March 8, 2012, Petitions for Leave to Intervene and File New Contentions under 10 CFR 2.309(a),

(d) or in the Alternative 10 C.F.R. § 2.309(e) and JRWA and PW Motion to Reopen under 10 C.F.R. 2.326 and Request for a Hearing under 10 C.F.R. § 2.309(a) and (d).

4

Impact Statement of July 2007, NUREG-1437, Supplement 29 (PNPS EIS) is inadequate and should be supplemented.

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

Water Pollution Control Laws Massachusetts has independent police powers to protect the Commonwealths water resources, including Cape Cod Bay, upon whose shores Entergy operates a cooling water intake structure without a state permit, and into which Entergy discharges about .5 billion gallons per day of pollutants. There is no doubt that the Commonwealth has the authority to regulate Entergys CWIS. Entergy Nuclear Generation Company vs. Department of Environmental Protection, 459 Mass. 319, 332, (2011). The State Act, entirely independent of the federal Clean Water Act, provides that no one may discharge pollutants or engage in any other activity that may reasonably be expected to result, directly or indirectly, in discharge of pollutants into waters of the Commonwealth without a currently valid permit issued by Mass DEP. Id. at 9, citing M.G. L. c. 27,

§ 43(2).

Massachusetts independent policy powers over its water resources is not preempted by the Atomic Energy Act. 42 U.S.C. § 2021(k). 4 Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988)

(Atomic Energy Act does not preempt state health and safety regulations); Kerr-McGee v. City of West Chicago, 914 F. 2d 820 (7th Cir. 1990)(Atomic Energy Act does not preempt state and local agencies from regulating non-radiological hazards; NRC retains authority to protect the public from radiological hazards). Nor is the State Act preempted by the federal CWA. Massachusetts may 4 State regulation of activities for certain purposes. Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.

5

impose pollution control limits that are more stringent than the floor set by Federal [Clean Water Act] law. Id. at p. 9, citing, §§ 1311(b)(1)(C). The federal Clean Water Act Section, § 402 National Pollutant Discharge Elimination Permit (NPDES) program is totally separate from the State Act. 42 U.S.C. § 1342.

Massachusetts is not and never has been a federal Clean Water Act delegated state. U.S.

EPA administers the federal Clean Water Act permitting program in Massachusetts. Id. at 8.

Before a federal permit may issue under the federal Clean Water Act, Massachusetts must first certify that the permittees activities will not violate the states water quality standards. 42 U.S.C. § 1341; Entergy, supra at 9. This state approval is known as a 401 certification. A federal Clean Water Act § 401 water quality certification of a federal NPDES permit by Massachusetts is a free-standing item provided by Congress in the CWA. Massachusetts can issue, renew, condition, suspend or revoke a § 401 water quality certification as it sees fit, if it expires by its terms, if the reviewed/approved discharge changes, or if there is other good cause.

Massachusetts water quality regulations applicable to CWIS are intended to prevent the type of environmental destruction caused by Entergys operations. 314 C.M.R. 4.05(5)(d). The state Supreme Judicial Court has stated, the ecological harms associated with CWISs are well understood. The intake of water a CWIS at a single power plant can kill or injure billions of aquatic organisms in a single year. The environmental impact of these [cooling water intake] systems is staggeringdestabilizing wildlife populations in the surrounding ecosystem. In areas with a designated use as aquatic habitat (such as Cape Cod Bay where Pilgrims CWIS operates), therefore, CWISs hinder the attainment of water quality standards. (citations omitted; emphasis supplied)

Entergys joint U.S. EPA-state NPDES permit was issued in 1994 and expired in 1996. This permit does not supersede the states independent water quality standards, including the CWIS 6

regulation. Without regulatory review of any sort, Entergys 16-year old NPDES has been administratively extended by U.S.EPA. 5 New information shows EPAs review of the 1994 permit and CWA § 316(a) and (b) demonstration reports is stalled and will not be done for at least a year. See, Affidavit of Anne Bingham, Esq. (Bingham Affidavit).

In order to be relicensed, Entergy must demonstrate that it has a current 316(a) variance and 316(b) determination. 10 C.F.R. 51,53(c)(3)(ii)(B). (Applicant must provide a copy of a current Clean Water Act 316(b) determinations [sic] and, if necessary, a 316(a) variance in accordance with 40 CFR part 125, or equivalent State permits and supporting documentation. If the applicant cannot provide these documents, it shall assess the impact of the proposed action on fish and shellfish resources resulting from heat shock and impingement and entrainment. In an attempt to meet this requirement, Entergy filed two letters from the state, dated April 15, 1971 and July 31, 1970, which it claims are § 401 certifications, and an excerpt from the now-expired 1994 NPDES permit purporting to state that the current CWIS is the best technology available for minimizing adverse environmental impact. 6 Any attempt by the NRC to rely upon these 40 year old letters and 5

PNPSs NPDES permit covers both CWA § 316(a) (thermal discharges) and (b), 33 U.S.C. §§ 1326(a),(b). Section 316(a) allows the power plant operator to seek a variance from thermal discharge limits if it can prove that those limits are not necessary to protect the qualities of the receiving waters. It states, With respect to any point source otherwise subject to the provisions of section 301 or section 306 of this Act whenever the owner or operator of any such source, after opportunity for public hearing, can demonstrate to the satisfaction of the Administrator (or, if appropriate, the State) that any effluent limitation proposed for the control of the thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the projection [protection] and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made, the Administrator (or, if appropriate, the State) may impose an effluent limitation under such sections for such plant, with respect to the thermal component of such discharge (taking into account the interaction of such thermal component with other pollutants), that will assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on that body of water. 33 U.S.C. 1326(a); emphasis supplied.

For CWISs, the federal CWA provides in § 316(b) Cooling water intake structures. Any standard established pursuant to section 301 or section 306 of this Act] and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. 33 U.S.C. 1326(b).

6 See, Applicants Environmental Report, Operating License Renewal Stage, Attachment A, which is part of Entergys NRC relicensing Application. See alos, Sections 4.2.5, Page 4-8, and 4.3 of Entergys (ER).

7

the expired NPDES permit, which Entergy claims are current § 401 water quality certifications that meet the standards of 51.53(c)(3)(ii)(B) is unreasonable and an egregious derogation of duty by any measure. It would also be an insult to the Congressional goals and objectives set forth in the federal CWA, and to the Commonwealth of Massachusetts and its citizens who seek to protect Cape Cod Bay under the State Act. Moreover, the last 316(a) and (b) demonstration reports accepted by the state and/or US EPA for PNPS were done in the 1970s.

The NRC has also overlooked regular discharges of unpermitted toxic chemicals to Cape Cod Bay by PNPS. Since about 1995, PNPS has been regularly discharging a corrosion inhibitor called tolytriazole into Cape Cod Bay without a state or federal water pollution permit. See, e.g.,

Exhibit 1, Jan. 2012 Discharge Monitoring Report. The 1994 NPDES permit does not allow the discharge of tolytriazole and contains no effluent limit for it.

Entergy is also discharging radioactive effluent to Cape Cod Bay in violation of state law.

State Act regulations prohibit the discharge of radioactive materials to waters of the Commonwealth. 314 C.M.R. 4.05(5)(d) states, Radioactivity. All surface waters shall be free from radioactive substances in concentrations or combinations that would be harmful to human, animal or aquatic life or the most sensitive designated use; result in radionuclides in aquatic life exceeding the recommended limits for consumption by humans; or exceed Massachusetts Drinking Water Regulations as set forth in 310 CMR 22.09.

Entergys radioactive effluent discharges to Cape Cod Bay are described in monitoring reports going back to at least 1996 and continuing to the present. See, e.g. Exhibit 1, Jan. 2012 DMR.

Entergy does not have a state permit allowing discharges of radioactive substances and has not shown that its discharges from PNPS meet the standards of 314 C.M.R. 4.05(5). The state retains authority to protect its coastal resources and uses, including wildlife and aquatic life, within its coastal zone, from radioactive releases. This authority is not preempted by the Atomic Energy Act.

8

Entergy has not shown that its CWIS operations are consistent with and protective of the surface water quality standards for Cape Cod Bay. 314 C.M.R. 4.05(4)(a). This requires operating PNPS in a manner that ensures that Cape Cod Bay meets the standard of being an excellent habitat for fish, other aquatic life and wildlife, including for their reproduction, migration, growth and other critical functions. Petitioners proffer evidence such as the Affidavit of Alex Mansfield (Mansfield Affidavit), to show that Entergy routinely kills vast amounts of fish and marine aquatic life with its CWIS operations, including herring in violation of the state ban, and that endangered North Atlantic right whales are regularly sighted near PNPS. Petitioners Nisbet Affidavit states that continued operation of PNPS has the significant potential for adverse effects on roseate terns and that this is a significant environmental issue. Id. at ¶ 7. Petitioners new and significant information shows that the NRC cannot reasonably rely on Entergys 40 year old documents and an expired 16-year old NPDES permit claiming to be a current 316(a) variance and 316(b) determination, and a valid § 401 certification. Further, the absence of a state permit allowing the operation of the CWIS at PNPS pursuant to 314 C.M.R. 4.05(4)(a)(2)(d) deems any such reliance ludicrous at best.

Finally, Entergy is violating the requirement in its 1994 NPDES for a marine biological report annually approved by Massachusetts and U.S. EPA. Entergys NPDES permit, Part A.8.b states, Entergy shall conduct such studies and monitoring as are determined by the EPA and the State to be necessary to evaluate the effect of the operation of the Pilgrim station on the balanced, indigenous community of shellfish, fish, and wildlife in and on Cape Cod Bay. The environmental monitoring plans were declared an integral element of the NPDES permit. Permit, ¶ 8.c, and must be approved annually. (Upon approval by the Regional Administrator [of EPA] and the 9

Director [of the state water quality division], the revised [biological monitoring] programshall be incorporated as part of this permit.) Entergy does not have an approved monitoring plan under its NPDES ¶ 8.c, and has not had one for about 10 years. Since Petitioners cannot be expected to provide proof of a negative, it is incumbent upon the NRC and Entergy to provide proof of approved plans to show that indeed, Entergy is and has been in compliance with permit provision 8.

B. This Entergy cannot do.

Coastal Zone Management Act The Coastal Zone Management Act, 16 U.S.C.S. § 1456(c)(3)(A), requires Entergy to certify to the NRC that relicensing complies with the enforceable policies of the states approved [coastal zone management] program and that such activity will be conducted in a manner consistent with the program. 7 Entergy obtained a CZM certificate from Massachusetts in 2006 and as shown below, this certificate was, at the time it was issued, lacking all necessary information and data, and based on inaccurate data, and new information shows additional reasons why the certificate is invalid.

The CZMA establishes a national policy to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nations coastal zone for this and succeeding generations and to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone... 16 U.S.C.S. § 1452(1) and (2).

Massachusetts has a federally approved coastal zone management program, and authority to conduct a federal consistency review of any application for a federal license or permit in or 7 NRC relicensing has reasonably foreseeable effects on coastal resources and is subject to MCZM review. 301 CMR 2.07(a)(6).7 10

outside of the coastal zone, affecting any land or water use or natural resource of the coastal zone of that state. 16 U.S.C.S. § 1456(c)(3)(A). 8 A coastal zone management certification must assess the coastal effects of the action. Coastal effects are defined broadly, and include, not only environmental effects (i.e., impacts on biological or physical resources found within the state coastal zone), but also to effects on human uses, such as fishing and boating, public access and recreation, scenic and aesthetic enjoyment, and resource creation or restoration. Furthermore, effects include both direct effects that occur from the federally licensed activity at the same time and place, and indirect effects resulting from the incremental impact when added to other past, present, and anticipated actions, regardless of who undertakes such actions. Also known as cumulative and secondary effects, indirect effects of a federal action may result either later in time or farther removed in distance, but must always be reasonably foreseeable. (emphasis supplied) 15 C.F.R. § 930.11(g).

Massachusetts implements the CZMA through enforceable policies drawing their authority from state laws, regulations, and policies relating to coastal resources and uses- such as state water pollution control, water quality standards, wetlands, fisheries, and endangered species laws. 301 CMR §§21.07 and 21.98. 9 An applicant seeking a consistency review shall furnish to the stateall necessary information and data, 16 U.S.C.S. 1456(c)(3)(A), including all material relevant to a States management program. 15 CFR 930.58; 301 CMR 21.07(3). See, e.g. Conservation Law Foundation v. Lujan 560 F.Supp. 561 (D.Mass. 1983). MCZM regulations require an applicant seeking a federal consistency certification to possess all necessary state permits. 10 If significant 8 The Massachusetts program is codified at: 301 CMR §§ 20.00 to 26.00 (MCZM program).

9 Massachusetts Office of Coastal Zone Management Policy Guide, October 2011. (available at: http://www.mass See also,.gov/czm/plan/czm_policy_guide.htm, last visited 3/19/2012) (State Policy Guide).

10 301 C.M.R. § 21.07(3)(f): The MCZM Office shall concur with or object to a federal consistency certification on the basis of MCZM's program policies and their implementing state regulations.MCZM's decision shall be contingent on prior receipt of all other necessary state licenses, permits and certifications.

11

new circumstances or information shows that the activity will have substantially different coastal effects than originally described, a supplemental consistency certification must be prepared. 11 Entergys NRC license renewal application contains a Coastal Zone Management Consistency Certification which states, Entergy certifies to the NRC that renewal of the PNPS operating license complies with the enforceable policies of Massachusetts approved coastal zone management program and will be conducted in a manner consistent with such program. Entergy expects PNPS operations during the licensing renewal period to be a continuation of current operations as described below, with no station changes that would change effects on Massachusetts coastal zone. 12 Massachusetts 2006 one page CZM certification for PNPS states that [w]e concur with your certification and find that the activity as proposed is consistent with the CZM enforceable program policies and .[if the project] is noted to be having effects on the coastal zone or its uses that are substantially different then originally proposed, please submit an explanation of the nature of the change to this office pursuant to 301 CMR 21.17 and 15 CFR 930.66. 13 Contrary to the states 2006 certificate and the statements in Entergys CZM report, relicensing will violate at least three state CZM policies.

First, state Water Quality Policy #1 requires an applicant to [e]nsure that point-source discharges in or affecting the coastal zone are consistent with federally-approved state effluent 11 15 CFR § 930.66(a) provides, For federal license or permit proposed activities that were previously determined by the State agency to be consistent with the management program, but which have not yet begun, applicants shall further coordinate with the State agency and prepare a supplemental consistency certification if the proposed activity will affect any coastal use or resource substantially different than originally described. Substantially different coastal effects are reasonably foreseeable if: (1) the applicant makes substantial changes in the proposed activity that are relevant to management program enforceable policies; or (2) There are significant new circumstances or information relevant to the proposed activity and the proposed activitys effect on any coastal use or resource. (emphasis supplied).

The action for which Entergy seeks certification is another 20 years of operations following June 8, 2012, therefore the proposed activity has not yet begun.

12 Entergy Application for NRC Relicensicng, Attachment D, CZM Consistency Report.

http://www.nrc.gov/reactors/operating/licensing/renewal/applications/pilgrim/environ-report.pdf 13 See, NUREG-1437 Supplement 29, p. E-19.

12

limitations and water quality standards. 301 CMR 21.98(3). The policy is implemented through state statutes and regulations such as the state surface water quality standards, 14 which include CWIS regulations to protect water quality. 15 Key elements of Water Quality Policy #1 are described in the State CZM Policy Guide, which relies on the federal CWA NPDES, permit program and the State Act. 16 Second and third, the MCZM Habitat Policies #1 and # 2 respectively require that PNPS relicensing will: Protect wetland areas including salt marshes, shellfish beds, dunes, beaches, barrier beaches, salt ponds, eel grass beds, and freshwater wetlands for their role as natural habitats and Promote the restoration of degraded or former wetland resources in coastal areas and ensure that activities in coastal areas do not further wetland degradation but instead take advantage of opportunities to engage in wetland restoration. 17 14 314 C.M.R. §§4.00 (2006) 15 314 C.M.R. §4.05(4)(a)(2)(d).

16 One area of particular concern in Massachusetts is the avoidance or minimization of impacts from activities that withdraw water from the coastal zone, either for once-through cooling (e.g., power plants) or for process water (e.g.,

desalination plants), includingbut not limited tothe entrainment and impingement of marine organisms and the quality of such withdrawn water when discharged back to the coastal zone. Issuance or reissuance of a NPDES permit for a power plant is contingent upon the demonstration that the permitted activity is in compliance with federal regulations associated with thermal discharges and cooling water intake structures (CWA Section 316(a) and (b)), as well as state water quality standards. CWA Section 316(a) applies if the permit applicant seeks a variance from technology-based or water quality-based effluent limitations for the discharge of heat. To obtain the variance, the applicant must demonstrate that the effluent limitations proposed will ensure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the receiving waters. CWA Section 316(b) applies if the permit applicant seeks to withdraw cooling water from waters of the United States. Under Section 316(b), the applicant must demonstrate that the location, design, construction, and capacity of the facilitys cooling water intake structures reflect the Best Technology Available for minimizing adverse environmental impacts. In addition to the federal statutes that apply to power plants, the state water quality standards include limitations on the maximum temperature and change in temperature that can be discharged by power plants (as well as other facilities). The state water quality standards allow for the establishment of conditions for power plant cooling water intakes and desalination plant intakes to ensure that the narrative and numerical criteria, and designated uses of the water body, are protected.(emphasis provided) 17 301 CMR 21.98(4).

13

Habitat Policy # 1 guidance provides, submerged coastal habitats in general provide feeding areas, spawning and nursery grounds, and shelter for finfish, shell fish, and other marine fisheries, and that submerged areas also serve as fish runs, through which anadromous and catadromous fish pass back and forth between the ocean and inland water bodies for spawning purposes. Fish runs are important components of aquatic ecosystems generally, with the fish themselves being an important food source for other organisms throughout their life cycle. Moreover, their migrations provide a direct link between marine and freshwater ecosystems. This link plays a role in maintaining the overall productivity of fisheries that provide recreational and commercial benefits.

State Policy Guide pp. 41-42.

Habitat Policy # 1 also relies upon the Massachusetts Endangered Species Act (MESA) and regulations at 321 CMR 10.00, which protect rare species and their habitats by prohibiting the taking of any plant or animal species listed as Endangered, Threatened, or Special Concern under state law. State Policy Guide, p. 45. All of the federally endangered species identified as being present at PNPS are also listed as endangered under MESA, 18 and therefore the Petitioners contentions relating to ESA compliance are relevant to its CZM contention.

Habitat Policy # 2 acknowledges the important role of wetlands, their protection and restoration, and the states efforts to restore the ecological integrity of degraded habitats, using techniques such as culvert replacement, stream naturalization, and fill and dam removal. State Policy Guide, p. 49.

18 http://www.mass.gov/dfwele/dfw/nhesp/species_info/mesa_list/mesa_list.htm#VERTEBRATES 14

The Water Quality and Habitat Policies are intertwined with CWA § 316(a) and 314 C.M.R.

4.05(4)(a)(2)(d), and the water quality standard which designates Cape Cod Bay as Class SA excellent habitat.

Entergys 2006 CZM Certification Report purports to show that it is in compliance with both laws. 19 As shown above, Entergy was in violation of state and federal water pollution control laws in 2006, and continues to be in violation to this day.

River Herring Moratorium As noted, Habitat Policy #1 addresses the role of coastal submerged lands as fish runs.

River herring are one type of fish using coastal zone submerged lands adjacent to the PNPS site.

River herring are the third most impinged species at PNPS, and the state has a ban on killing them. 20 The March, 2012 Atlantic States Marine Fisheries Commission report concludes that that the coast-wide population of river herring is depleted to near historic lows. 21 On November 2, 2011, river herring was designated a candidate species under ESA § 7, and a listing decision will be made by August 2, 2012, about two months after PNPSs license expires. Neither Entergys 2006 CZM report nor the state CZM certificate or § 401 certificate address this new scientific data evidencing the threat to the existence of river herring.

Endangered Species 19 Entergys Report states, The PNPS NPDES permit, issued August 30, 1994, by EPA Region 1, constitutes the current CWA 316(b) determination for PNPS. Entergys report does not, however, address thermal discharges as required by state law and 316(a). Entergy also stated, PNPS operations are consistent with its NPDES permit requirements which are based on federally approved water quality standards. Entergy CZM Report, Table D-1.

20 Mansfield Affidavit. In 2006, Massachusetts adopted a moratorium on the taking of the two species of river herring, alewives (Alosa pseudoharengus) and bluebacks (Alosa aestivalis). 322 CMR 6.17(3), which states, It shall be unlawful for any person to harvest, possess or sell river herring in the Commonwealth or in the waters under the jurisdiction of the Commonwealth. There is an exception for personal use. In March 2012, Massachusetts issued a reminder that the moratorium has been continued through 2012.

http://www.mass.gov/dfwele/dmf/marinefisheriesnotices/2012/river_herring_030212.htm 21 See, Management Board Review of the of Stock Assessment Report No. 12-02, Terms of Reference & Advisory Report of the River Herring Stock Assessment, Peer Review, 15

Entergys CZM report, Attachment A to its Environmental Report, claims there are no effects on endangered species, 22 including state listed sei, right, blue, finback, and humpback whale. This report is wholly inadequate: it relies on the flawed U.S. FWS assessment for terrestrial species, such as the roseate tern, which Petitioners May 2, 2012 contention shows violates the federal Endangered Species Act. It relies on a no effects finding for species under NMFS jurisdiction. NMFS on March 26, 2012, informed the NRC Staff that it cannot concur with the Entergy and NRC no effects finding. Since all of these species are also protected under the state MESA, Entergy cannot show compliance with the CZM policies on endangered species.

Essential Fish Habitat The Magnuson-Stevens Fishery Conservation and Management Act of 1976, 15 U.S.C.S.

§§ 1801 et seq. (MSA) and implementing regulations at 50 C.F.R. 600.905 et seq., are also relevant to Petitioners contention. The MSA aims to promote the protection of essential fish habitat in the review of projects conducted under Federal permits, licenses, or other authorities that affect or have the potential to affect such habitat. 15 U.S.C.S. §1801(b)(7). As Petitioners show in their March 8, 2012 filing, the MSA consultation has been improperly postponed to the EPA NPDES permitting process. Therefore, this critical finding, relevant to the Massachusetts CZM policy is missing.

Brief Explanation of Basis for Contention: § 2.309(f)(1)(ii) 22 Table D-2 of the CZM report lists Endangered and Threatened Species that Occur in the Vicinity of PNPS or In Plymouth County.

16

Petitioner hereby offers the following brief explanation of the basis for its contention:

the law and facts supporting Petitioners contention are set forth above and incorporated by reference herein.

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

Under the CZMA and NRC relicensing regulations, Entergy must have a valid state CZM consistency certificate and § 401 water quality certification. Under 10 C.F.R. 51.53, Entergy must have a current 316(b) determination and 316(c) variance and a valid state § 401 certification. The PNPS EIS must adequately address all of the environmental impacts raised by Petitioners, supra, and it does not. As shown by Petitioners proffered evidence, Entergy cannot show compliance with these requirements and therefore the contention is within the scope.

Contention is Material to the NRCs Findings: § 2.309(f)(1)(iv)

The petitioners must show the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding. 10 C.F.R. 20.309(f)(1)(iv). There can be no dispute that the Petitioners contention is material to the findings the NRC must make to support relicensing.

Under 10 C.F.R. § 54.29(a)(2)(b), Entergy can only be relicensed if the NRC finds that any applicable requirements of Subpart A of 10 CFR Part 51 have been satisfied. The Part 51 environmental report shall discuss in this report the environmental impacts of alternatives and any other matters described in § 51.45, 10 C.F.R. 51.53(c)(2), must contain analyses of the environmental impacts of the proposed action, including the impacts of refurbishment activities, if any, associated with license renewal and the impacts of operation during the renewal term, for those issues identified as Category 2 issues and shall assess the impact of the proposed action 17

on threatened or endangered species in accordance with the Endangered Species Act. Under 51.53(c)(3)(i)(B), (E). As shown supra, Entergys application does not meet these standards.

A valid § 401 certificate is required for a valid NPDES permit, and Entergys application relies on 40 year old state letters and an expired 1994 permit that Petitioners contend are inadequate. Federal CZM consistency review is a prerequisite to PNPS relicensing 16 C.F.R. § 1456(c)(3). 23 As shown above, neither the CZM consistency certification nor the § 401 water quality certification are valid. Therefore, Petitioners contend relicensing cannot occur, and the contention is material. The PNPS EIS must be supplemented to address the environmental impacts Petitioners raise in connection with the CZM certification and § 401 certification (lack of CWIS permit, violations of discharge limits, unpermitted discharges, violation ESA provisions and violation of ban on river herring takes) in order to comply with NEPA.

Concise Statement with Citations/

References:

§ 2.209(f)(1)(v)

The Petitioners provide a concise statement of the facts supporting the contention, along with appropriate citations in accordance with 10 C.F.R. 20.309(f)(1)(v). The citations and references are cited above, and incorporated by reference herein.

Contention Raises Genuine Dispute: § 2.309(f)(1)(vi)

Sufficient information indicates a genuine disputes exists between Petitioners and NRC Staff and the applicant, Entergy, on a material issue of law or fact, pursuant to 10 C.F.R. 23 Under 16 U.S.C. §1456(c)(3)(A), Entergy must provide to the NRC a certification that the continued operation of PNPS complies with the enforceable policies of the state's approved program and that operation will be conducted consistent with the program.

18

20.309(f)(1)(vi). Petitioners dispute that Entergys application meets the prerequisites for relicensing, supra. The NRC staff and Entergy contend that relicensing prerequisites are met.

Petitioners proffer evidence that relicensing will be inconsistent with MCZM enforceable policies. The fundamental underpinning of MCZM Water Quality Policy # 1 is that point-sources discharges in or affecting the coastal zone are consistent with federally-approved state effluent limitations and water quality standards. 301 C.M.R. 21.98(3). The State Policy Guide seeks to prevent impingement, entrainment, and heat shock, all events occurring at PNPS, and relies on, inter alia, a current, valid, CWA §§ 316(a) variance and (b) demonstration report, compliance with 314 CMR 4.00 water quality standards, 301 CMR 21.98(12), and proper assessment of impacts to endangered species. Petitioners show that Entergy is violating water quality standards by discharging tolytriazole without a permit, discharging radioactive effluent in violation of 314 C.M.R. 4.05(5)(d), killing river herring in violation of the state ban under 322 C.M.R. 6.17(3), did not properly assess impacts to endangered species, relies on a 40 year old § 401 certificate, an expired NPDES permit, and relies on 40 year old 316(a) variance and (b) demonstration report, and therefore cannot possibly show compliance with the state CZM policy.

There is a genuine dispute as to whether the operation of PNPS during the relicensing period will be consistent with Habitat Policies #1 and #2. Habitat Policy # 1 is intended to protect beaches for their role as natural habitats and to promote the restoration of degraded or former wetland resources in coastal areas and ensure that activities in coastal areas. Petitioners show, supra, that Entergy does not have an approved marine monitoring plan, intended in part to ensure the protection of the coastal zone. Habitat Policy #2 is in dispute because new information shows that instead of taking actions during the relicensing period to promote restoration of degradedwetland resources in coastal areas, and ensure they are not further 19

degraded, 301 CMR 21.98(3), Entergy plans to continue operations that have adverse impacts on coastal resources. Finally, there is genuine dispute about whether Entergy has properly assessed impacts to endangered species, which must be done in order to obtain a CZM certificate. Thus, as shown here, Petitioners contention raises a genuine dispute.

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

Petitioners contention meets the standards of 10 C.F.R. § 2.309(f)(2) because it is based on documents and information not available at the time the petition was filed. For Petitioners issues arising under NEPA, the contentions are based on new information showing that the information Entergys Environmental Report is outdated and wrong, and Entergy violates the state and federal water pollution control laws, and the endangered species act, all of which are subsumed under the CZM policy. Petitioners contention shows that data and conclusions in the PNPS EIS ignore significant facts relevant to the environmental impacts of relicensing, supra.

Petitioners put forth new information relevant to CZM compliance and water pollution that was not previously available. 10 C.F.R. § 2.309(f)(2)(i). For example, they show 2012 unpermitted discharges of tolytriazole, killings of river herring, unpermitted radioactive effluent releases, and new information about roseate terns and other endangered species.

This new information is materially different than information previously available as required by 10 C.F.R. § 2.309(f)(2)(ii). Previously available data, put forth by Entergy and the NRC staff, purported to show compliance with the State Act, state CZM policies, and NEPA.

Petitioners materially different new information shows that this is not true.

This contention has been submitted in a timely fashion based on the availability of the 20

subsequent information. 10 C.F.R. § 2.309(f)(2)(iii). It was not until recently that Petitioners discovered the wholesale failure of the regulatory system with regard to the issues raised in this contention. Until that point, Entergy and the NRC kept silent about these issues, for which mandatory statutory disclosure and/or due diligence duties exist. Both disregarded obligations to supplement the CZM consistently report, as required by 15 CFR 930.66. Even more outrageous, Entergy sued to prevent implementation of state water quality standards - the very laws upon which it based its 2006 Consistency Certification - and apparently never disclosed this fact to MCZM, no doubt hoping it would be relicensed before its legal challenged finished winding its way through state courts. Entergys willful disregard and omission of a material facts may indeed rise to the level of civil fraud within the meaning of 10 C.F.R. § 13.3(b). See, 15 C.F.R. § 930.58(a)(1)(applicant shall furnish state with necessary data and informationwhich shall include all material relevant to the States management program)

Petitioners should not be prejudiced for Entergys failure to amend its CZM Report, to provide material new information to the NRC in this relicensing proceeding, or for NRCs wholesale failure to exercise due diligence with regard to Entergys violations of state and federal law. Petitioners relied to their detriment on NRC doing its duty to ensure compliance with state and federal laws, and to act with reasonable diligence, and relied on Entergy to undertake mandatory efforts to provide all material relevant information in the licensing process.

In NRC proceedings, estoppel has been applied to ensure fairness in the licensing process. Here, fundamental fairness requires that Entergy and the NRC be estopped from asserting that Petitioners contention is untimely. 24 24 Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility), LBP-82-24, 15 NRC 652, 658 (1982), rev'd on other grounds, ALAB-682, 16 NRC 150 (1982) 21

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. This motion relates to a contention not previously in controversy among the parties, and as shown here, Petitioners meet the standards of 10 C.F.R. § 2.326(a), (b) and (d).

Under 10 C.F.R. § 2.326(a), Petitioners motion to reopen must be timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented. Part II, above, shows that Petitioners contention raises an exceptionally grave issue that may be considered in the discretion of the presiding officer even if untimely presented.

Under 10 C.F.R. 2.326(a)(2), this motion must address a significant safety or environmental issue, if it is not shown to be an exceptionally grave issue. Failure to comply with state laws and federal water laws, reliance on a 40-year old 316 (a) variance and (b) demonstration report, a 40+ year old § 401 certification, unpermitted pollutant discharges to Class SA waters in Cape Cod Bay, and operation of PNPS without a CWIS permit, individually and collectively, as described in Part II, supra, raise a significant environmental issue.

As required by 10 C.F.R. § 2.326(b), Petitioners motion to reopen is accompanied by affidavits that set forth the factual and/or technical bases for Petitioners claim that the criteria of 10 C.F.R. § 2.326(a) have been satisfied. Petitioners submit the affidavits of Bingham, Nisbet, duBois, and Mansfield to show that the contention raises an exceptionally grave and significant environmental issue, to wit, lack of a valid CZM certificate and § 401 water quality certification, violations of state and federal water pollution control laws (duBois and Mansfield), absence of current 316(a) variance and (b) demonstration report in an current NPDES permit (Bingham),

and impacts on endangered and candidate species (Mansfield, duBois, Nisbet). These affidavits 22

are given by competent individuals and based on admissible evidence, and address the criteria of

§ 2.326(a)(1)-(3), and explain why each has been met, as shown below.

§ 2.326 Factor CZM Violations § 401 Certification NEPA Violations Violations (a)(1) timely DuBois ¶s 22, 23, DuBois ¶s 22, 23, DuBois ¶s 22, 23, 24, 25; Bingham 24, 25; Bingham 24, 25; Bingham Aff ¶ 11; Nisbet Aff ¶ 11; Nisbet Aff ¶ 11; Nisbet Aff. ¶ 8, 14. Aff. ¶ 8, 14. Aff. ¶ 8, 14.

(a)(1) exceptionally Entirety of: Entirety of: Entirety of:

grave Mansfield Aff., Mansfield Aff., Mansfield Aff.,

DuBois Aff., Nisbet DuBois Aff., Nisbet DuBois Aff., Nisbet Aff. Aff. Aff.

(a)(2) significant Entirety of: Entirety of: Entirety of:

environmental issue Mansfield Aff., Mansfield Aff., Mansfield Aff.,

DuBois Aff., Nisbet DuBois Aff., Nisbet DuBois Aff., Nisbet Aff.; Bingham Aff. Aff.; Bingham Aff. Aff.; Bingham Aff.

(a)(3) materially Entirety of: Entirety of: Entirety of:

different result Mansfield Aff., Mansfield Aff., Mansfield Aff.,

DuBois Aff., Nisbet DuBois Aff., Nisbet DuBois Aff., Nisbet Aff.; Bingham Aff. Aff.; Bingham Aff. Aff.; Bingham Aff.

Petitioners proffered evidence demonstrates on its face that a materially different result would be or would have been likely had their newly proffered evidence been considered initially and therefore Petitioners meet the criteria of 10 C.F.R. § 2.326(a)(3). If the Petitioners information had been considered initially, there would be a different CZM certificate and § 401 certificate, compliance with state and federal water pollution laws would be required, and the PNPS EIS would have given a vastly different view of the environmental impacts of relicensing.

Under § 2.326(d), a motion to reopen relating to a contention not previously in controversy must also satisfy the requirements for nontimely filing in § 2.309(c). As shown above, Petitioners contention meets the standards of § 2.309(c).

IV. Request for Hearing and Petition for Leave to Intervene 10 C.F.R. 2.309(a) 23

and (d)

A. Standing Petitioners address the four general requirements for standing applicable to a request for hearing or a petition to intervene under 10 C.F.R. § 2.309(d)(i) to (iv). They further address the standards for discretionary intervention and § 2.309(e).

Pilgrim Watch Standing Petitioner 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 and in which 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 Standing 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. 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 24

identified members have authorized the organization to request a hearing on their behalf. 25 In addition, the interests that the representative organization seeks to protect must be germane to its own purpose, and neither the asserted claim nor the requested relief must require an individual member to participate in the organization's legal action. Id. JRWA also seeks intervention based on organizational standing.

The prudential standing factor requires a showing that the parties asserted interest arguably falls within the zone of interests protected by the governing law. For operating license proceedings, the Commission generally has a presumption in favor of standing for persons with frequent contacts with the area near a nuclear power plant. 26 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. 27 JRWA asserts both representational standing and organizational standing based on the declaration of E. Pine duBois, Executive Director of JRWA (duBois Affidavit). JRWA members

.25 Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station, LBP-10-19, NRC (October 28, 2010).25 See, Shaw AREVA MOX Servs. (Mixed Oxide Fuel Fabrication Facility), LBP-07-14, 66 NRC 169, 183 (2007).

26 See, e.g., Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 95 (1993 27 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-93-4, 37 NRC 72, 83 (1993). 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)27 Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant, Unit 1), LBP-07-11, 65 NRC 41, 52 (2007). Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 162-63 (1993).

25

live and work within 50 miles of the facility. Id. ¶ 5. duBois lives and works approximately 8 miles from the PNPS. Id. ¶ 1 to 5. The duBois Affidavit demonstrates that she, as a member of JRWA and individually, is concerned about the effects on Cape Cod Bay and its coastal zone resources and uses, including aquatic marine species and how this will be impacted if PNPS is relicensed without complying with state and federal water pollution control laws and if the PNPS EIS is not supplemented with new and substantial information. Id. ¶s 1, 3, 6, 9. 13-24. The duBois Affidavit establishes she 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. As shown above, the interests sought to be protected by the CZMA and state and federal water pollution control laws, including endangered species protections, are directly impact JRWAs mission, its organizational interests, and members interests. An alleged injury to the environment, shared equally by many, can form the basis for standing. 28 The duBois Affidavit states that she has authorized JRWA to represent her interests in this licensing proceeding. Id. ¶ 3. Therefore, JRWA has established representational standing.

Under 10 CFR § 2.309(d), Petitioner JRWA has standing to intervene because its members live and work within 50 miles of the facility. duBois Affidavit ¶ 5. JRWAs objectives in this matter are to protect the environment and the attributes of it which its members enjoy by ensuring that newly proffered evidence about marine aquatic species and their habitat is properly considered in this proceeding. The protection of these values is directly linked to JRWAs organizational mission and the interests of its members. duBois Aff. ¶ 6 to 12. Petitioner JRWA has shown that it has members who live, work, and recreate within the 50-mile radius of the 28 See Philadelphia Elec. Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1434 (1982).

26

PNPS, members who have frequent and regular contacts with the marine aquatic resources and coastal zone in and around the Jones River and Cape Cod Bay, as well as with other features of the natural environment. duBois Aff. ¶5, 7, 10, 17, 26.

JRWA was established in 1985, to protect the 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. 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. Therefore, JRWA meets organizational standing requirements.

The regulation at 10 C.F.R. § 2.309(d)(iii) requires Petitioners to state the nature and extent of the petitioners property, financial, or other interest in the proceeding. JRWAs interests in the values sought to be protected under the MCZM Water Quality and Habitat Policies are within the zone of interests sought to be protected by the CZMA. 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 coastal resources and uses in the environs of PNPS. duBois Aff. ¶ 1 to 27. These interests relate to both the JRWAs 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 and its coastal zone resources and uses, and as habitat for anadromous and diadromous fisheries that have been the focus of JRWAs decades long efforts to restore and protect the environment. JRWA has raised public and private funds 27

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.

By intervening in this proceeding, JRWA seeks to protect Cape Cod Bay and the costal zone uses and resources in the vicinity of the Jones River, all attributes of which its members enjoy by ensuring Petitioners proffered evidence is considered in the PNPS relicensing proceeding.

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 laws cited in Part II is directly linked to JRWAs organizational mission and the interests of its members. duBois Aff. ¶ 6 to 12.

Pursuant to 10 C.F.R. § 2.309(d)(iv), Petitioners show the possible effect on their interests of any decision or order that may be issued. Any decision to relicense PNPS will have a direct impact on the interests of JRWA and its members in the coastal resources and uses in Cape Cod Bay and the Jones River. An order or decision on whether to allow intervention and a hearing will directly effect JRWAs interest in ensuring the protection, restoration and health of Cape Cod Bay, its water quality, and its coastal resources and uses as described in the CZMA.

JRWA asks that the licensing decision maker reject Entergys license applicable based on the new information and circumstances relevant to the facts raised in Part II, supra. Such a decision will have a positive effect on Petitioners interest in protecting and restoring coastal resources and uses in Cape Cod Bay and the coastal portions of Jones River by ensuring consistency with MCZM policies and a valid § 401certification. Thus, an order or decision will directly impact Petitioners interests in protecting the interests of its members, and help ensure that JRWA can successfully carry out its mission during the 20-year relicensing period of PNPS operations.

28

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 interest in the water quality in Cape Cod Bay. It will also have a positive impact on the interests of duBois and JRWA members in ensuring that the adverse environmental impacts of Entergys operations on all aspects of the state CZM policy and underlying water quality and endangered species factors are adequately considered. 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. duBois Aff. ¶5, 7, 10, 17, 26; V. Nontimely Filing under 2.309(c)

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

29 Late intervention is possible until issuance of a full-power license. 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. 30 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.

29 Texas Utilities Electric Co. (Comanche Pak Steam Electric Station, Unit 2), CLI-93-4, 37 NRC, 156, 160 (1993).

30 Washington Public Power Supply System (WPPSS Nuclear Project No. 3), LBP-84-17A, 19 NRC 1011, 1015(1984).

29

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 Crow Butte Resources, Inc. (North Trend Expansion Project), LBP-08-6, 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. 32 Good cause has been found where a contention is based on new information 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. 33 The availability of new information may constitute good cause for delay in seeking intervention. 34 As shown supra, new, substantial, and significant information relating to Petitioners contentions has been brought forth. New developments and the availability of new information support late-filed motions to intervene. 35 The availability of material information is a significant 31 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). 31 Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 69-73 (1992).

32 Wisconsin Public Service Corporation (Kewaunee Nuclear Power Plant), LBP-78-24, 8 NRC 78, 83 (1978).

33 Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-85-19, 21 NRC 1707, 1723 (1985)

(internal citations omitted) 34 Duke Power Co. (Amendment to Materials License SNM-1773 -- 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-80-14, 11 NRC570, 572-573 (1980).

35 See Duke Power Co. (Amendment to Materials License SNM-1773-Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528 9 NRC 146, 148-49 (1979); Consumer Power Co. (Midland Plant, Units 1 & 2), LBP-82-62, 16 NRC 571, 577 (1982); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station Units, 1 &2), CLI-92, 36 NRC 62, 69-73 (1992).

30

factor in a Board's determination of whether a motion based on such information is timely filed. 36 Here, Petitioners show recent violations of state and federal water pollution laws and failure to adequately address endangered species effects, all of which are directly related to Entergys ability to provide evidence of a valid state CZM certificate and state § 401 certification. Further, Petitioners federal ESA contentions filed in March and May 2012 concern endangered and threatened species that use Cape Cod Bay and depend on the implementation of state and federal water pollution laws for their protection. These species use and are present in the coastal zone, and adequate protection of these species is a prerequisite to a valid state CZM certificate and § 401 certification. The availability of this new information is a significant factor that weighs in Petitioners favor.

Estoppel is applied where a petitioner relies to its detriment on NRC staff representations. 37 Here, Petitioners reasonably relied on statements of federal and state regulators to do their jobs to evaluate whether Entergy was actually in compliance with environmental laws prior to relicensing, instead of rubber-stamping its application. This has not occurred. See, Part II, supra. In addition, Entergy itself in 2006, at the same time it filed its relicensing application, sued to stop implementation the CWIS at PNPS. Entergy vs. MassDEP, supra.

Neither Entergy nor the NRC have a valid basis for objecting to Petitioners nontimely filing: instead they themselves bear responsibility for the events giving rise to Petitioners contention: both turned a blind eye to obvious violations of water pollution control laws and CZM policy compliance for six years. Entergy failed to submit mandatory information to 36 Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-85-19, 21 NRC 1707, 1723 (1985)

(internal citations omitted) 37 See, e.g., Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility), LBP-82-24, 15 NRC 652, 658 (1982), rev'd on other grounds, ALAB-682, 16 NRC 150 (1982).

31

MCZM to update its CZM Report. Neither Entergy nor the NRC has done anything since at least 2007 to ensure that the NPDES permit and ESA 38 and MSA concurrences were up to date -

indeed, Entergy did the opposite: tried to stop implementation of the water quality standards underlying the MCZM policies. Fundamental notions of fair dealing and transparency show that Entergy should not be able to get away with, on one hand representing to MZCM that it was in compliance with state water quality standards, and, on the other hand, suing the state to stop implementation of those standards.

Both Entergy and the NRC are estopped from raising timeliness objections to Petitioners contention.

Although a petitioner may not rely on the pendency of another proceeding to protect its interests, and then justify a late petition on that reliance when the other proceeding fails to represent those interests, where petitioners were provided with erroneous information they have been allowed to intervene nonetheless. 39 To justify a late petition based on claims that petitioners relied on the pendency of another proceeding, it must be established that petitioners were furnished erroneous information on matters of basic fact, and that it was reliance upon that information that prompted their own inaction. Palo Verde, supra, 16 NRC at 2027-2028.

Here, Petitioners were furnished erroneous information by the NRC staff and Entergy, who represented that state and federal permits were up-to-date and valid, but they are not.

Petitioners have shown that Entergys Consistency Certification is based on incomplete and 38 As noted in Petitioners March 8 filing, they relied on written NRC Staff statements in 2007 that the ESA § 7 consultation was being conducted and the EFH process was concluded and that the NPDES permit renewal process was underway. In a similar case before the NRC, confusing and misleading letters from the Staff to a prospective pro se petitioner for intervention, and failure of the Staff to respond in a timely fashion to certain communications from such a petitioner, constitute a strong showing of good cause for an untimely petition.

Wisconsin Public Service Corporation (Kewaunee Nuclear Power Plant), LBP-78-24, 8 NRC 78, 81-82 (1978).

39 Consolidated Edison Co. (Indian Point Station, Unit No. 2), LBP-82-1, 15 NRC 37, 39-40 (1982); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-82-117B, 16 NRC 2024, 2027 (1982).

32

erroneous information. Petitioners have been provided with erroneous information in Entergys license application and in the state MCZM certification on basic facts required to be established before the state CZM certification and state water permit can be considered valid. Petitioners should not be penalized for omissions of federal regulators and the applicant, and their filing should not be barred as untimely.

2. Right to be Made a Party Late-filed petitions must address the nature of the petitioners 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.

3. Petitioners Property, Financial and Other Interests Late filings must address the nature and extent of the petitioners 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.

4. Possible Effect of Any Order on the Petitioners Interest(s)

Late-filed petitions must address the possible effect of any order that may be entered in the proceeding on the requestors/petitioners interest. 10 C.F.R. § 2.309(c)(1)(iv). This factor is 33

addressed in Standing, supra, and shows that this factor weighs in Petitioners favor.

5. Other Means for Protecting Petitioners Interests Late filed petitions must address the availability of other means whereby the requestors/petitioners interest will be protected. 10 C.F.R. § 2.309(c)(1)(v). The fact that no one will represent a petitioner's position if its hearing request is denied is itself sufficient for the Commission to excuse the untimeliness of the request. 40 The question to be addressed under this factor is not whether other parties may protect a petitioners interests, but rather whether there are other means by which the petitioner may protect its own interests. 41 Participation of the NRC Staff in a licensing proceeding is not equivalent to participation by a 42 private intervenor. Thus, it is not sufficient to say that the NRC staff will represent the Petitioners interests in the licensing proceeding.

Other than litigating their contentions in the licensing proceeding, there are no other means available to Petitioners to protect their interests in ensuring that PNPS is not relicensed until Entergy obtains a permit under the State Act, a valid state CZM certification, a permit to discharge tolytriazole under state and federal laws, a permit to discharge radioactive waste into Cape Cod Bay from the state, and a valid 316(a) and (b) permit from both the state and federal agencies, and an adequate NEPA environmental impact statement. There is no other forum that is developing a record that will be the basis for the decision to relicense PNPS. This information shows that this factor weighs in favor of Petitioners intervention.

40 Westinghouse Electric Corporation (Nuclear Fuel Export License for Czech Republic -

Temelin Nuclear Power Plants), CLI-94-7, 39 NRC 322, 329 (1994).

41 Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 & 2), ALAB- 292, 2 NRC 631 (1975).

42 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).

34

6. Extent to Which Petitioners Interests Will be Represented by Existing Parties A late filing must address the extent to which the requestors/petitioners 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 hearing, 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. 43 The NRC has accurately recognized that, in weighing the § 2.309(1)(vi) factor, a board will not assume that a late-filing petitioners 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. 44 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 in ensuring that environmental issues are adequately addressed. One cannot legitimately claim that Petitioners interest in ensuring that relicensing does not occur before there is a valid CZM certificate and § 401 water quality certification means anything other than their participation in this proceeding. Entergy and the 43 Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-79-21, 10 NRC 183, 195 (1979).

44 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.

35

NRC staff have engaged in a pattern of minimizing, ignoring, and delaying consideration of significant environmental issues in this proceeding. See, Petitioners prior filings relating to the ESA and MSA issues, and the NRC attempt to punt to EPA its duty to comply with the MSA to EPAs NPDES permit. Unless the hearing is reopened and Petitioners allowed to intervene and litigate their contentions, their interests will not be represented in the relicensing 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.

7. Extent to Which Petitioners Participation Will Broaden the Issues or Delay the Proceedings Late-filed petitions must address [t]he extent to which the requestors/petitioners participation will broaden the issues or delay the proceeding. 10 C.F.R. § 2.309(c)(1)(vii).

While the potential for delay is of immense importance in the overall balancing process, 45 it is not dispositive.46 In considering factor seven, the Licensing Board has ruled that potential for delay includes only delay attributed directly to the tardiness of the petition. 47 While the potential for delay is of immense importance in the overall balancing process, 48 the magnitude of threatened delay must be weighed, since not every delay is intolerable. 49 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 broadened or delay will occur, and whether it is appropriate to weigh this factor 45 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 402 (1983),

46 USERDA (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383 (1976) 47 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.

48 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).

49 Public Service Electric & Gas Co. (Hope Creek Generating Station, Units 1 & 2), LBP-77-9, 5 NRC474 (1977).

36

in evaluating the late-filing of the petition and Petitioners narrow contention. 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 petitioners new discovered and proffered evidence, and the value of petitioners participation in the proceeding.

Petitioners new and material information has not been considered at all in this proceeding. Petitioners raise exceptionally grave and significant concerns relative to compliance with federal and state law, effects of Entergys CWIS operations during a 20 year relicensing period on Class SA waters in Cape Cod Bay, effects on endangered species that use the coastal zone, and effects on the publics right to the use and enjoyment of the coastal zone that are derogated by Entergys CWIS, issues relating to NEPA compliance, and Entergys failure to provide information in its license application that is complete and accurate in all material respects. 10 C.F.R. § 54.13. The seriousness of these issues outweighs any inconvenience or delay in the relicensing decision.

Any broadening of the issues or delay in the proceedings must be viewed through the lens of the detailed and extensive system of state laws that underlie the MCZM policies and the degree of importance Massachusetts has placed on protecting Cape Cod Bay, through water quality and other laws. Entergy and the NRC are attempting to run rough-shod over the public interest in seeing the states laws implemented in the manner in which they were intended when enacted by the Massachusetts legislature. 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, and to the importance placed by Congress on the national goal that the discharge of pollutants into navigable waters be eliminated by 1985, and that the discharge of toxic pollutants in toxic amounts be prohibited, consistent with the 37

objective of the federal Clean Water Act to restore and maintain the chemical, physical, and biological integrity of the Nations waters. 42 U.S.C. § 1251(a) (emphasis supplied). Indeed, here, the factor of broadening the issues and delay should be given little or no weight at all, given the fact that other contentions are pending.

The relative benefits of litigating Petitioners contentions weighs in favor of granting the petition and this factor should be accorded substantial weight. The benefits of allowing Petitioners contention to be litigated outweigh any potential disadvantage with regard to broadening the issues or delaying the proceeding.

8. The Extent to which Petitioners Participation May Reasonably Be Expected to Assist in Developing a Sound Record Late-filed petitions must address [t]he extent to which the requestors/petitioners participation may reasonably be expected to assist in developing a sound record. 10 C.F.R. § 2.309(c)(1)(viii). Absent Petitioners participation here, the record of compliance with the state and federal clean water laws, the Massachusetts CZMA, and NEPA will be incomplete. The NRC staff and Entergy have demonstrated complete disregard for the duty to ensure that any renewed license will identify the obligations of the licensee in the environmental area, 10 C.F.R. 54.33, and that the standards for environmental reports under 10 C.F.R. 54.29 are met.

Entergy and the NRC are content to rely on 40 year old approvals and an expired NPDES permit for meeting the standard for a current 316(a) and (b) demonstration under 10 C.F.R. 51.53(c)(3)(b). They are content to rely on a superficial and inaccurate CZM report, showing a blatant disregard for Massachusetts coastal zone resources and uses and for the protection of Cape Cod Bays water quality and uses as required by 314 C.M.R. 4.05.

38

Petitioners contention and supporting affidavits and documentation will assist in developing a sound, accurate and up-to-date record of coastal effects, water pollution, and wildlife effects. Furthermore, the terms of CZMA regulation 15 C.F.R. § 930.66(a)(2) are clear:

because there are significant new circumstances and information relevant to the proposed activity and its effect on Massachusetts coastal resources and uses, as Petitioners have shown, substantially different coastal effects are reasonably foreseeable, and supplemental consistency report must be prepared. 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 filing, 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). 50 Although it is Petitioners position that they have established 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 50 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 those issues.

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

39

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.

As shown in Standing, supra, Petitioners have standing, and at least one admissible contention has been submitted and is the basis for Petitioners hearing request, as shown in Part II, above. Should the decision maker find that Petitioner has not established standing to intervene as of right, Petitioner moves to intervene as a matter of discretion.

The discretionary intervention doctrine comes into play only in circumstances where standing to intervene as a matter of right has not been established. 51 Despite a 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 those issues.

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

The Commission has broad discretion to allow intervention where it is not a matter of right. The primary factor to be considered is the significance of the contribution that a petitioner might make: 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 in question. 52 Where there are no intervenors as of right, a Licensing Board will determine whether a discernible public interest would be served by ordering a hearing 51 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).

52 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-92-23, 36 NRC 120, 131-32 (1992); Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 & 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-02-14, 56 NRC 15, 28 (2002).

40

based on a grant of discretionary intervention. 53 Here, Petitioners detailed contentions and supporting affidavits are essential to ensuring a sound adjudicatory record.

Under 10 C.F.R. § 2.309(e), a petitioner who is determined not to have standing as of right, who wishes to seek intervention as a matter of discretion, is required to address 6 factors that are to be weighed. Even though they assert that they have established standing, Petitioners address the 6 factors. The factors weighing in favor of allowing intervention are set forth in § 2.309(e)(1)(i) through (iii), and mirror the factors in § 2.309(c)(1)(viii), (iii), and (iv) respectively. Therefore, in support of its showing under for discretionary intervention under § 2.309(e)(1)(i) through (iii), Petitioners incorporate by reference its statements in Parts II-V, addressing the requirements for nontimely requests, petitions, and contentions under

§2.309(c)(1).

The factors weighing against intervention are set forth in § 2.309(e)(2)(i) through (iii) and mirror the factors in § 2.309(c)(1)(v), (vi), and (vii), respectively. Therefore, in support of its Motion to Reopen under § 2.309(e)(2)(i) through (iii), Petitioners incorporate by reference its statements in Part V supra, addressing §2.309(c)(1) )(v), (vi), and (vii). As shown therein, Petitioners have no other means whereby their interests will be protected and it is necessary to allow them to intervene to protect their interests. § 2.309(e)(2)(i). If there were other means to protect their interests, this would weigh against allowing intervention but that is not the case.

Petitioners have shown that their participation may reasonably be expected to assist in developing a sound record, the nature and extent of their property, financial and other interests in the proceeding is significant, and any decision or order that may be issued in the proceeding will 53 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-76-27, 4 NRC 610, 617 (1976); see also Andrew Siemaszko, CLI-06-16, 63 NRC at 716; General Public Utilities Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 44 NRC 143, 160 (1996)(A primary consideration is the first factor of assistance in developing a sound record.)

41

have a substantial effect on petitioners interests. Petitioners have demonstrated the capability and willingness to contribute to the development of the evidentiary record, even if the decision-maker determines they cannot show the traditional interest in the proceeding. Petitioners have submitted the substantive affidavits of Mansfield, Nisbet and duBois which show their capability and willingness to contribute the development of the evidentiary record.

Petitioners interests would be served by the issuance of any order requiring the NRC to fulfill its non-discretionary duty under NEPA to consider the new and significant information and newly proffered evidence in Petitioners contentions before making a licensing decision. See 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).

Existing parties will not represent petitioners interests because the hearing is closed and the other parties, Entergy and the NRC, hold positions opposing Petitioners. §2.309(e)(2)(ii).

Therefore, there is little weight to be placed on this factor, because there is no other way for Petitioners interests to be represented. Finally, Petitioners participation will not inappropriately broaden the issues or delay the proceeding as shown in Part (c). §2.309(e)(2)(iii). Therefore, when the factors weighing in favor of intervention far outweigh those against allowing intervention and the ruling body should allow discretionary intervention.

For discretionary intervention, the burden of convincing the Licensing Board that a petitioner could make a valuable contribution lies with the petitioner. 54 Considerations in determining the petitioner's ability to contribute to development of a sound record include:

showing of significant ability to contribute on substantial issues of law or fact which will not be 54 Nuclear Engineering Co., Inc. (Sheffield, Ill. Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 745 (1978) 42

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 Station, Units 1 and 2), LBP-81-1, 13 NRC 27, 33 (1981) (and cases cited therein). 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.

The Petitioners proffer significant new information showing that Entergy lacks state certifications that are a prerequisite to NRC relicensing, and that it is in violation of state and federal water pollution control laws, and that the NEPA PNPS EIS should be supplemented.

This 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.

VII. Conclusion Petitioners have made the requisite showings for a motion to reopen, to intervene and file contentions, and have met the standards for non-timely filings. Their request for a hearing should be granted. The Commission and/or Board should consider the new and significant information brought forward by Pilgrim Watch and Jones River Watershed Association and provide a hearing on this contention prior to relicensing.

Respectfully submitted, 43

(Electronically signed)

Margaret Sheehan 61 Grozier Road Cambridge MA 02138 Tel. 508-259-9154 Email: meg@ecolaw.biz May 14, 2012 (Electronically signed)

Anne Bingham 78A Cedar St.

Sharon, MA 02067 Email: annebinghamlaw@comcast.net May 14, 2012 (Electronically signed)

Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332 Tel. 781-934-0389 Email: mary.lampert@comcast.net May 14, 2012 May 14, 2012 On May 11, 2012, the Petitioners notified all parties of record of their intent to make this filing. Entergy advised that it objects. The NRC Staff responded but did not say one way or another whether it objects. Massachusetts Attorney Generals Office did not respond.

(Electronically signed)

Margaret Sheehan 44

61 Grozier Road Cambridge MA 02138 Tel. 508-259-9154 Email: meg@ecolaw.biz (Electronically signed)

Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332 Tel. 781-934-0389 Email: mary.lampert@comcast.net May 14, 2012 45

46

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

Entergy Nuclear Opertions Inc. )

Pilgrim Nuclear Power Station )

License Renewal Application )

______________________________________)

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

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

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

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

1

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

These documents were represented to constitute all public records on PNPSs surface water intake and discharge to Cape Cod Bay that were in Region 1s possession.

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

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

2

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

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

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

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

3

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

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

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

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

Entergy Nuclear Operations Inc. )

Pilgrim Nuclear Power Station )

License Renewal Application )

_____________________________________)

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

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

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

4. I received a Master of Science in Environmental, Coastal, and Ocean Sciences in 1997 from the University of Massachusetts. I have Bachelor of Science from the University of Massachusetts. I am a member of the Estuarine Research Page 1 of 13

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

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

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

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

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

8. The GEIS states, Eleven Federally and/or State-listed marine species could occur in Cape Cod Bay in the vicinity of PNPS, including five whales. GEIS, Table 2-4, p. 2-84, which is reproduced below. Cape Cod Bay is the southwestern most portion of the Gulf of Maine (EOEA, 2009). The 2010 U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments, conducted by National Marine Fisheries (NMFS) an agency within the federal National Oceanic and Atmospheric Administration (NOAA), confirms the presence of these species in Cape Cod Bay.

(Waring et al 2011 pgs 8-39).

Page 2 of 13

9. The GEIS states, Section 2.2.5.3.7, states, Although these species have been documented in Cape Cod Bay and/or coastal Massachusetts waters, no whales have been observed in the shallow waters off PNPS or in the intake and discharge areas by Boston Edison or Entergy biologists since biological monitoring began in the late 1960s.

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

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

Page 3 of 13

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

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

Page 4 of 13

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

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

Page 5 of 13

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

14. Figure 3 below shows North Atlantic Right Whale sightings from January 1, 2007 to February 28, 2012, as reported by NOAAs Sighting Survey and Sighting Advisory System database (http://www.nefsc.noaa.gov/psb/surveys/).

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

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

Page 6 of 13

16. I have reviewed the NRC staff BA of 2006. It does not contain the information shown in Figures 2 and 3 of this affidavit, or similar commercially available scientific data. The information contained in Figures 2 and 3 of this affidavit is scientific and commercially available data which could have been obtained prior to July 2007. This data shows that marine species, including North Atlantic Right Whales are present in much broader spatial scales than the narrow areas defined by the GEIS and the 2006 BA.

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

18. NMFS has published a Recovery Plan for the North Atlantic Right Whale (NMFS 2005). The ultimate goal of this recovery plan is to promote the recovery of North Atlantic right whales to a level sufficient to warrant their removal from the List of Endangered and Threatened Wildlife and Plants under the ESA. To meet that goal NMFS has targeted steady population increases over the course of at least 35 years. NMFS does not even attempt to cite criteria for delisting North Atlantic right whales since the current abundance of North Atlantic right whales is an order Page 7 of 13

of magnitude less than an abundance at which NMFS would even consider delisting the species, and decades of population growth likely would be required before the population could attain such an abundance. Neither the GEIS nor the 2006 BA consider NMFSs targeted population increases for North Atlantic Right Whales.

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

20. As described in the GEIS, pg. 2-84, migratory sea turtles that are still present in Cape Cod Bay in late fall and winter may become cold-stunned and wash ashore. In the winter of 1999 to 2000, 277 sea turtles were found on Cape Cod beaches. In 2003 there were 89 turtles stranded. In 2003, a loggerhead turtle was stranded on Priscilla Beach approximately 0.63 mi south of PNPS.

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

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

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

22. "River herring" includes two species, alewife (Alosa pseudoharengus) and blueback herring (Alosa aestivalis). Starting in January 2006 Massachusetts Division of Marine Fisheries implemented a three year moratorium on the harvest, possession and sale of river herring (322 CMR 6.17). In 2008, the state moratorium Page 8 of 13

was extended to the end of 2011. As of January 1, 2012 the Atlantic States Marine Fishery Commission (ASMFC) requires states to declare a moratorium on fishing for river herring unless a Sustainable Fishery Plan (SFP) is prepared and approved.

Massachusetts has not prepared a SFP and continues to operate under the moratorium (322 CMR 6.17). They are currently listed as a candidate species by NMFS under the ESA (76 FR 67652).

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

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

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

1995 when alewife alone was the greatest single species impinged at the plant and total river herring impinged was 41,128 individuals (39,884 alewife + 1,244 blueback herring) 2010 when alewives were the second most impinged species (after Atlantic silversides) at an extrapolated total of 12,680 fish plus an additional 271 blueback herring. This is more than three times greater than the total number of fish estimated for the entire 2010 Jones River river herring population.

Page 9 of 13

25. The high levels of impingement of river herring have not been addressed in the NRC Staff BA or in the GEIS. In addition to impingement of adult and juvenile river herring the GEIS states that Alewife larvae and juveniles have been collected in the PNPS entrainment sampling (GEIS, p. 2-34). The GEIS does not address the reasons why river herring larvae and juveniles are found in the PNPS facility when these species spawn in freshwater rivers, tributaries, ponds and lakes. The reproductive cycle of river herring is such that the eggs and hatched fry remain in freshwater. Juveniles eventually migrate out to marine environments in the late summer and fall.

26. In the GEIS, section 4.8.1 Cumulative Impacts on Marine Aquatic Resources, concludes, Cumulative impacts on the marine aquatic food web also could potentially occur as a result of reductions in the prey base of higher-trophic-level predators. If major reductions in Cape Cod Bay populations of forage fish, such as rainbow smelt, alewife, herring, menhaden, and silverside, resulted from mortality due to entrainment and/or impingement at PNPS, then predatory fish, as well as some bird species, dependent on these prey populations might be adversely affected. Although populations of some forage species, such as the rainbow smelt, have declined relative to historical levels, stocks of most forage species are relatively healthy.

And also, Impingement and entrainment impacts from PNPS may also contribute to reduced stock sizes, in turn lowering the catch per unit effort for both commercial and recreational fishing. With the exception of winter flounder and rainbow smelt, most of the fish stocks potentially affected by PNPS are considered to be healthy or the levels of take by PNPS are very minimal.

27. River herring are not addressed in the discussion and conclusion above.

In 2007, when the SEIS was issued, river herring had already been nationally listed as a species of concern and Massachusetts had declared three year moratorium on Page 10 of 13

the harvest, possession and sale of river herring (see above paragraph 22).

Entergys reports have shown that river herring have been impinged every year of the past thirty years and that alewives have had the third highest number of individuals impinged at PNPS of any species (see paragraph 24 above).

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

For example:

1991 an estimated 90,449 Atlantic silversides were impinged 2005 an estimated 277,601 Atlantic menhaden were impinged 2003 an estimated 30,763 Sand Lance were impinged Eggs of these species are frequently entrained by the hundreds of millions or more.

29. The direct impact on the low trophic species has not been addressed in the GEIS. Moreover, the cumulative impacts of food web dynamics and ecological function at higher trophic levels, especially for state and federally listed endangered and threatened species, and candidate species river herring, has not been addressed. For example, as pointed out in the GEIS Sand lance is an important prey species for many demersal fish species and the endangered fin whale (Balaenoptera physalus) and humpback whale (Megaptera novaengliae). Other frequently entrained and impinged species (Atlantic herring, Menhaden, etc) are also common Page 11 of 13

prey and/or incidental food for endangered species including Humpback whales, Fin whales, Sei whales, etc. Yet no cumulative impacts are described in the GEIS.

30. The action area for purposes of the ESA is defined in 50 CFR 402.02 as all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action. The GEIS does not address how thermal loading, impingement, and entrainment impact the food web, food supply for the listed species and critical habitat.

31.

References:

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

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

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

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

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

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

Waring GT, Josephson E, Maze-Foley K, Rosel, PE, editors. 2011. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments -- 2010. NOAA Tech Memo NMFS NE 219; 598 p

________ ___________________ Executed in Accord with 10 C.F.R. 2.304(d) on March 6, 2012 Page 12 of 13

Alex Mansfield, Environmental Director, JRWA, Inc.

alex@jonesriver.org 14 Puritan Lane Marshfield, Massachusetts Tel. 781-585-2322 Dated:__March 6, 2012______________________

Page 13 of 13

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 in 1985. The purposes of the corporation shall include the exercise of power and authority to acquire and preserve natural resources and wildlife areas for the use and enjoyment of present and future generations, to preserve and protect historic sites, to educate the public about the wise use of natural resources, and to work with other organization having the same purposes. As part of this mission, JRWA has worked to monitor and improve the habitats and populations of diadromous fishes, including, in particular, river herring. The annual filings for JRWA are complete through corporate year 2010.

1

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

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

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

produce organic vegetables and animals for home use or sale through Community Supported Agriculture programs; members engage in photography and other forms of artistry requiring nature observation. Many volunteer to help count fish in the annual monitoring program. For the last six years, over 50 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.

3

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.

4

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.

5

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

16. JRWA has continued its herring count every year since 2005 and has reported our results to NOAA and DMF, who are keeping records of other runs in Massachusetts. We also became involved with the Herring Alliance, which is addressing the problem of fisheries by-catch and working to have federal regulations adopted that will prevent the accidental catch of river herring at sea, especially by mid-water trawlers. On its website (http://www.mass.gov/dfwele/dmf/spotlight/river_herring.htm) DMF states that the by-catch of river herring. While significant, this amount of mortality is not sufficient to cause the coastwide decline of the river herring stocks and so there must be other, currently unidentified factors contributing to mortality. (Webpage as above, Spotlight: River 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 JRWAs first major structural alteration to advance its goal to restore the spawning population of river herring. This was the first of three dams being 6

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

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

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

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

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

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

23. In the spring of 2011, 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 8

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

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

26. JRWAs interests in the health of the Jones River and Cape Cod Bay, and its ability to carry out its mission is harmed by the following issues relating to PNPSs plans to continue to use once through cooling water during the 20 year re-licensed period: (a) The absence of NMFS concurrence on the NRCs 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.

9

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 10

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 1

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, 1989). 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 USFWSs 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 2

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 MASs 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 Austins 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 3

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.).

4

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 Scotia, 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 Browns 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 5

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 he 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.

6

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 springand 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 terns 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 natureSince 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 7

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).

8

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.

9

10