ML11293A352

Lr Hearing - Schedule for Final Bo

ML11293A352
Person / Time
Site:	Indian Point
Issue date:	09/22/2011
From:	- No Known Affiliation
To:	Division of License Renewal
References
Download: ML11293A352 (8)

Text

IPRenewal NPEmails From: Zoli, Elise N [EZoli@goodwinprocter.com]

Sent: Thursday, September 22, 2011 2:18 PM To: Julie Crocker; Trach, William J Cc: Stuyvenberg, Andrew; Trach, William J; Gray, Dara F; Julie.Williams@Noaa.Gov; Sutton, Kathryn M.; Dacimo, Fred R.; Mark Mattson; Imboden, Andy; BUCKLEY, RICKY N; Dowell, Kelli; pbessette@morganlewis.com; Turk, Sherwin; Balsam, Briana; Logan, Dennis; Glew Jr, William; Fitzgerald, Robert H; Larry Barnthouse; Mayer, Donald M

Subject:

RE: Schedule for final BO Julie, you now should have received the documents from BJ and me. Please, let us know if they did not go through.

Many thanks, and my regards, Elise Elise N. Zoli GOODWIN PROCTER LLP Exchange Place, Boston, MA 02109 l T:617.570.1612 l F:617.227.8591 l M:617.461.7062 ezoli@goodwinprocter.com Assistant: Kathleen Casey - 617-570-1648 IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. Thank you.

From: Julie Crocker [1]

Sent: Thursday, September 22, 2011 11:19 AM To: Zoli, Elise N Cc: Stuyvenberg, Andrew; Trach, William J; Gray, Dara F; Julie.Williams@Noaa.Gov; Sutton, Kathryn M.; Dacimo, Fred R.; Mark Mattson; Imboden, Andy; BUCKLEY, RICKY N; Dowell, Kelli; pbessette@morganlewis.com; Turk, Sherwin; Balsam, Briana; Logan, Dennis; Glew Jr, William; Fitzgerald, Robert H; Larry Barnthouse; Mayer, Donald M

Subject:

Re: Schedule for final BO Elise -

Thank you for providing this information. I look forward to receiving the 2010 REMP and the NY State report you reference in your email below. No need to send the FSEIS as I have that already.

We will be in touch re. the schedule soon.

Julie 1

On 9/21/2011 6:33 PM, Zoli, Elise N wrote:

Julie, consistent with my discussion today with Julie Williams, we very much appreciate NMFS' interest in receiving information relevant to Riverkeeper's September 15, 2011 correspondence, and provide the relevant information below. We request that Riverkeeper's correspondence be addressed, consistent with law, on a courtesy basis, as their correspondence is not authorized by the Section 7 consultation process and we are concerned otherwise may delay conclusion of a process that already has undergone a substantial extension. See Final ESA Section 7 Consultation Handbook, March 1998, p. 1-14 (citing 50 CFR 402.14(g)(5)). Moreover, while we understand that NMFS may require additional time to issue a final BO, based on NRC's September 20th correspondence (following its September 6th comments) and are willing to allow a reasonable extension there (one that terminates prior to September 30th), we cannot agree to an extension to respond to Riverkeeper's September 15th correspondence.

As Julie Williams and I discussed, NMFS has requested information on two matters: (1) radionuclide discharges; and (2)

Indian Point 1's intake system. Each is addressed below, with specific reference to the NRC's Final Supplemental Environmental Impact Statement ("FSEIS").

Radionuclides With respect to issue #1, radionuclide discharges from Indian Point have been thoroughly assessed, and it has been determined by Entergy, New York and NRC that there are no identified or probable impacts to fish. The matter is addressed in detail in the FSEIS for Indian Point, in Section 2.2.7, pp. 2-104 through 2-114. It expressly reflects analysis of environmental impacts, including potential impacts to "Hudson River water, fish and invertebrates, aquatic vegetation, bottom sediment and shoreline sediment," p. 2-105, and reaches the following conclusions:

(1) that all reviews of radionuclides in the environment (as broadly defined to include aquatic considerations) were found to be non-detectable, naturally occurring or "significantly less than those from" natural background conditions or other anthropogenic conditions" (including "residual levels from atmospheric weapons testing," p. 2-106), p. 2-109; and, more specifically, with respect to the 2009 REMP:

(2) that "[n]o radionuclides other than those naturally occurring were detected in the Hudson river water samples," p. 2-107 (quoting 2009 REMP report);

(3) that "fish and invertebrate sample analysis results showed there were no plant-related gamma emitting radionuclides detected in 2009," p. 2-107. In this discussion, NRC notes that some of the REMP samples were reported as "not reliable and under review," p. 2-107, with the result that Entergy would submit an addendum . Entergy did address the matter in the 1010 REMP, for which it established a new testing protocol to resolve the 2009 indeterminate results. The 2010 REMP results established no radionuclides in fish above background. (A copy of the 2010 REMP follows, as noted below.)

and, in addition, with respect to Hudson River fish:

(4) that New York State Department of Health (NYSDOH) conducted multi-media investigations, including of fish, confirming that radionuclide levels in the environment in fish in the vicinity of Indian Point were below detection limits or consistent with background radiation, p. 2-109; and (5) that NYSDOH and the New York State Department of Environmental Conservation (NYSDEC) evaluated radionuclide conditions in fish in the vicinity of Indian Point, and determined that radionuclide levels in fish were no higher than in those fish collected from background locations in other areas of the Hudson River, p. 2-112. (A copy of this assessment follows, as noted below.)

Based upon this information, we believe there is no reasonable or credible basis for concluding any potential risk to fish, including sturgeon. BJ Trach is copied here, and he or I will provide the links to the FSEIS, 2010 REMP and the New York report on fish for your review and records.

Indian Point 1 intake structure As you are aware, Indian Point 1 (IP1) is retired from electrical generation. On p. 2-13 of the FSEIS, NRC discusses the current use of the IP1 intake structure, which provides some nonessential service water to IP2 on a periodic basis (typically, during some summer months). The IP1 intake structure is in the middle of the same shoreline bulkhead containing the IP2 and IP3 intake structures, but unlike the IP2 and IP3 intakes, the IP1 intake forebays are underneath an existing post and piling dock structure. The IP1 intake structure has two redundant forebays (#11 and #12), each with a maximum or design flow of 10,000 gallons per minute (gpm), employing a dual flow traveling screen equipped with fine mesh screen (1/8 inch; 3.2 mm) panels. While a combined potential flow of 20,000 gpm is theoretically possible, the system as currently configured for IP2 is employed in a redundant matter, such that the maximum flow is from a single forebay, i.e., 10,000 gpm. Further, typical peak operating flow for IP1 is 5,500 gpm, and 6,000 gpm is the limit of the IP2 load, with the result that maximum flow should be considered 6,000 gpm. Employing the 6,000 gpm rate, the maximum pump flow rate represents merely 0.34% of Indian Point's total maximum flow of 1.746 million gpm (IP2 and IP3 combined circulating and service flows), and we suggest would be considered de minimis by any standards. Moreover, each dual flow traveling screen at IP1's intake has an estimated design through-screen velocity of less than the 0.50 feet per second (fps) through-screen velocity that the United States Environmental 2

Protection Agency (EPA) determined to be protective of 96% of swimming organisms, many smaller and more fragile than shortnose sturgeon. Dr. Mattson, copied here, has confirmed that any healthy sturgeon in the Hudson River of a size subject to impingement could easily escape impingement on the IP1 dual flow traveling screens by swimming away from the low design flow. As NMFS is aware, based on analysis of more than 30 years of extensive river monitoring data, sturgeon eggs and larvae are not present in the vicinity of the Indian Point intake structures and therefore not exposed to entrainment through any screens, including the IP1 dual flow traveling water screens. For completeness sake, please also note that four screen washwater pumps are employed for this system and total 8,000 gpm, although operating procedures rarely employ all four pumps. Based upon this information, we believe that NMFS' draft BO remains correct and comprehensive despite Riverkeeper's correspondence, that no further assessment of IP1's intake is warranted, and that IP1's intake cannot reasonably be construed to cause a separate incidental take of sturgeon. That said, we have agreed to discuss with NMFS a monitoring program, and certainly believe that any such program might include reasonable monitoring requirements for IP1, should NMFS consider such monitoring valuable.

I trust this responds to NMFS' questions, and look forward to issuance of the final BO. Our thanks for your efforts here, and my regards, Elise Zoli Elise N. Zoli GOODWIN PROCTER LLP Exchange Place, Boston, MA 02109 l T:617.570.1612 l F:617.227.8591 l M:617.461.7062 ezoli@goodwinprocter.com Assistant: Kathleen Casey - 617-570-1648 IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. Thank you.

From: Zoli, Elise N Sent: Tuesday, September 20, 2011 10:09 PM To: 'Stuyvenberg, Andrew'; Julie Crocker Cc: Gray, Dara F; Julie.Williams@Noaa.Gov; Sutton, Kathryn M.; Dacimo, Fred R.; Mark Mattson; Imboden, Andy; BUCKLEY, RICKY N; Dowell, Kelli; pbessette@morganlewis.com; Turk, Sherwin; Balsam, Briana; Logan, Dennis; 'Glew Jr, William'; Fitzgerald, Robert H

Subject:

RE: Schedule for final BO Julie, thanks very much for your email; we appreciate your indicating that NMFS may need additional time to issue its final Biological Opinion (BO). The relevant portion of our extension agreement is quoted below. Based on its language, the extension agreement contemplates that the final biological opinion will be issued no later than September 20th. We, therefore do not read the extension agreement as being effective after that date, consistent with 50 CFR 402.14(e), which both requires a finite deadline and sets a limit on the timeframe within which a final BO must be issued. As importantly, we believe the extension agreement did not guarantee NRC or Entergy comments, but allowed NRC or Entergy to choose what, if anything, they wanted to submit in the timeframe authorized, i.e., by September 6th. As such and as indicated in NRC's email earlier today on this subject, we understand NRC's submission of technical comments on the draft BO on September 6th constituted its position on the issues, as did our submission by that date on behalf of Entergy.

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That said, we understand that NMFS is interested in the benefit of NRC's process-related thoughts, which we understand were received by NMFS today. To that end, we are willing to extend issuance of the deadline for the final BO to Monday, September 26th, to allow NMFS a reasonable opportunity to consider NRC's September 20, 2011 correspondence. Because Entergy's express agreement is required to effect such an extension, we wanted you to have it in writing.

Further, we understand NMFS has two process-related questions, and we believe we can provide relevant assurances to NMFS on those issues, facilitating issuance of the final BO in a timely fashion:

(1) Entergy is willing to include the key elements of the proposed draft biological opinion, as finalized, in its proposed technical specifications to the licenses for IPEC. If we make such a commitment, we believe this provides NMFS with the requisite assurances regarding enforceability of the final BO (conforming to the draft BO while accounting for NMFS' response to comments received to date from Entergy and NRC). While we understand from NRC and our review of applicable regulation that this is not required by law, we believe such an approach is consistent with Entergy's commitment to environmental stewardship.

(2) In my conversation with Julie Williams, I also clarified that we can see no reasonable basis for amendment of the current NRC license renewal application with respect to cooling water intake technology that could trigger reinitiation of consultation under 50 CFR 402.16. To the contrary, consistent with NRC's September 20, 2011 correspondence, the ASLB determined that SPDES issues -

- specifically, Section 316(a and b) issues -- will be resolved in the pending NYSDEC proceeding, not before the ASLB on license renewal. If a final Section 316(a, b) decision in the SPDES proceeding requires NRC approval to implement, Entergy would submit such a new application to NRC, as a result of which we understand from NRC 's September 20, 2011 correspondence may precipitate a new consultation with NMFS on that amendment at that time. Likewise, CWIS modifications requiring US Army Corps approval would also trigger consultation with NMFS. For these reasons, we can foresee no situation in which NMFS consultation would not be sought, where required.

Finally, lest there be any confusion, we believe that NMFS' draft biological opinion addressed, within its authority, the proper species, i.e., short-nose sturgeon, and that the absence of discussion of Atlantic sturgeon is appropriate as a matter of law. To that end, while we appreciate that NRC may have an interest in NMFS' views on Atlantic sturgeon, we have identified no legal basis for the proposed further exchange of information, potential initiation of a new or different consultation, or the delay that would almost certainly result from either of those actions.

As noted above, the extension language is as follows:

"Ten calendar days after NMFS provides a draft BO to NRC (likely September 6 - first working day after Labor Day) - NRC provides comments from NRC and from Entergy, if any, on the draft BO to NMFS at the end of this 10-calendar day period. If there are no substantive comments, then NMFS prepares the final BO within several days of September 6. If NRC or Entergy submit substantive comments, then NMFS will either prepare a final BO within ten working days (September 20) or NMFS will notify NRC and Entergy of a need for additional time."

As always, I am happy to discuss the above, and my regards, Elise From: Stuyvenberg, Andrew [2]

Sent: Tuesday, September 20, 2011 8:37 AM To: Julie Crocker Cc: Gray, Dara F; Julie.Williams@Noaa.Gov; Zoli, Elise N; Sutton, Kathryn M.; Dacimo, Fred R.; Mark Mattson; Imboden, Andy; BUCKLEY, RICKY N; Dowell, Kelli; pbessette@morganlewis.com; Turk, Sherwin; Balsam, Briana; Logan, Dennis

Subject:

RE: Schedule for BO (revised proposal)

Julie -

The NRC staff transmitted all of its draft BO comments to NMFS on September 6, per our agreement. We have completed our letter in which we respond to Ms. Kurkuls cover letter and will issue it today.

Best regards, Drew From: Julie Crocker [3]

Sent: Monday, September 19, 2011 4:41 PM To: Stuyvenberg, Andrew Cc: Gray, Dara F; Julie.Williams@Noaa.Gov; Zoli, Elise N; Sutton, Kathryn M.; Dacimo, Fred R.; Mark Mattson; Imboden, 4

Andy; BUCKLEY, RICKY N; Dowell, Kelli; pbessette@morganlewis.com; Turk, Sherwin; Balsam, Briana; Logan, Dennis

Subject:

Re: Schedule for BO (revised proposal)

All, Given that NMFS has not yet received all of NRC's comments related to the draft Biological Opinion distributed to NRC on August 25, apparent disagreement regarding the schedule, and in light of the possibility of NMFS needing to address substantive comments, in an abundance of caution, NMFS is writing to indicate that additional time is needed for the consultation to be completed.

Julie On 6/29/2011 5:31 PM, Stuyvenberg, Andrew wrote:

Dara, others -

The following summarizes my understanding of the schedule for the ongoing ESA Section 7 consultation as agreed-to by NRC, NMFS, and Entergy on this afternoons teleconference.

T (likely July 5; not before July 5) - Entergy submits information on benthic resources in the action area as discussed on the June 22 teleconference (i.e., information on the biofouling community at the IP intakes, information on the entrainment of amphipods and published studies related to the distribution of the benthic community in the Hudson River). Entergy is also to provide to NRC any relevant thermal information for NRCs revised BA T+20 calendar days (likely July 25, depending on T) - NRC staff submits BA supplement to NMFS focusing on the assessment of the thermal discharge on shortnose sturgeon.

One month after NRC submits BA supplement to NMFS (likely August 25) - NMFS provides a draft Biological Opinion (BO) to NRC. In completing its BO, NMFS will: (a) review the information provided in the supplemental BA, (b) incorporate the new information on the thermal plume (Swanson et al.

2011, and other sources of information as appropriate) into the draft Opinion, (c) incorporate additional technical information provided by Entergy on the June 22 conference call, (d) make a draft determination as to whether the proposed action is likely to jeopardize the continued existence of shortnose sturgeon and provide justification for this determination, (e) prepare a draft Incidental Take Statement with draft Terms and Conditions and Reasonable and Prudent Measures, as appropriate.

Following receipt of the BO, it is NMFS understanding that NRC will distribute the draft BO to Entergy and request that Entergys comments be submitted to NRC for transmittal to NMFS pursuant to 50 CFR 402.14(g)(5).

Ten calendar days after NMFS provides a draft BO to NRC (likely September 6 - first working day after Labor Day) - NRC provides comments from NRC and from Entergy, if any, on the draft BO to NMFS at the end of this 10-calendar day period.

If there are no substantive comments, then NMFS prepares the final BO within several days of September 6. If NRC or Entergy submit substantive comments, then NMFS will either prepare a final BO within ten working days (September 20) or NMFS will notify NRC and Entergy of a need for additional time.

I believe that captures our agreed-upon timeline, but please reply if Ive missed or misconstrued anything.

Best regards, Drew

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated 5

recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. Thank you.

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Hearing Identifier: IndianPointUnits2and3NonPublic_EX Email Number: 2999 Mail Envelope Properties (5ACF1F60AC488242B7A710FC16B2B029068B8E98)

Subject:

RE: Schedule for final BO Sent Date: 9/22/2011 2:17:49 PM Received Date: 9/22/2011 2:18:15 PM From: Zoli, Elise N Created By: EZoli@goodwinprocter.com Recipients:

"Stuyvenberg, Andrew" <Andrew.Stuyvenberg@nrc.gov>

Tracking Status: None "Trach, William J" <WTrach@goodwinprocter.com>

Tracking Status: None "Gray, Dara F" <DGray@entergy.com>

Tracking Status: None "Julie.Williams@Noaa.Gov" <Julie.Williams@noaa.gov>

Tracking Status: None "Sutton, Kathryn M." <ksutton@morganlewis.com>

Tracking Status: None "Dacimo, Fred R." <FDacimo@entergy.com>

Tracking Status: None "Mark Mattson" <mmattson@normandeau.com>

Tracking Status: None "Imboden, Andy" <Andy.Imboden@nrc.gov>

Tracking Status: None "BUCKLEY, RICKY N" <RBUCKLE@entergy.com>

Tracking Status: None "Dowell, Kelli" <kdowell@entergy.com>

Tracking Status: None "pbessette@morganlewis.com" <pbessette@morganlewis.com>

Tracking Status: None "Turk, Sherwin" <Sherwin.Turk@nrc.gov>

Tracking Status: None "Balsam, Briana" <Briana.Balsam@nrc.gov>

Tracking Status: None "Logan, Dennis" <Dennis.Logan@nrc.gov>

Tracking Status: None "Glew Jr, William" <wglew@entergy.com>

Tracking Status: None "Fitzgerald, Robert H" <rfitzgerald@goodwinprocter.com>

Tracking Status: None "Larry Barnthouse" <lbarnthouse@cinci.rr.com>

Tracking Status: None "Mayer, Donald M" <dmayer1@entergy.com>

Tracking Status: None "Julie Crocker" <Julie.Crocker@Noaa.Gov>

Tracking Status: None "Trach, William J" <WTrach@goodwinprocter.com>

Tracking Status: None

Post Office: BOSMSGMBX04.goodwinprocter.com Files Size Date & Time MESSAGE 21087 9/22/2011 2:18:15 PM Options Priority: Standard Return Notification: No Reply Requested: No Sensitivity: Normal Expiration Date:

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