ML13196A210

Email from D. Logan, NRR to B. Balsam, NRR Pilgrim Memo to File

ML13196A210
Person / Time
Site:	Pilgrim
Issue date:	05/10/2012
From:	Logan D T Division of License Renewal
To:	Balsam B A Division of License Renewal
References
FOIA/PA-2013-0135
Download: ML13196A210 (6)

Text

Craver, Patti (/,S From: Sent: To:

Subject:

Attachments:

Logan, Dennis Thursday, May 102O124:36 PM Balsam, Briana RE: Pilgrim memo to file Pilgrim memo 1012-05-10 2.docx Briana: The attached file has additional edits. Have a good weekend. -Dennis From: Balsam, Briana , ,. (.Sent: Thursday, May 10, 20 12 2:29 PM To: Logan, Dennis

Subject:

RE: Pilgrim memo to file Thanks, Dennis. I will look at this.From: Logan, Dennis Sent: Thursday, May 10, 2012 2:04 PM To: Balsam, Briana

Subject:

RE: Pilgrim memo to file I am leaning toward a revised version something like this that sates just what we know and doesn't make claims outside of our area of expertise.

Turn on "track changes" to see edits.From: Balsam, Briana Sent: Thursday, May 10, 2012 11:04 AM To: Logan, Dennis

Subject:

Pilgrim memo to file Dennis, Do you have time today to look at the Pilgrim memo to file from ADAMS and concur via email today? I just got it back from Sylvia, and ideally, we want it out by the end of the week.The ADAMS No. is ML12129A248.

It's only 2 pages of text, so hopefully it won't take too much time!Thanks, Bdana 1 b 131 MEMORANDUM TO: Brian E. Holian, Director Division of License Renewal Office of Nuclear Reactor Regulation Melanie A. Galloway, Deputy Director Division of License Renewal Office of Nuclear Reactor Regulation FROM: Jeremy J. Susco, Acting Chief Environmental Review and Guidance Update Branch Division of License Renewal Office of Nuclear Reactor Regulation

SUBJECT:

NRC STAFF'S CONCLUSIONS REGARDING IRREVERSIBLE AND IRRETRIEVABLE COMMITMENT OF RESOURCES FROM THE PROPOSED PILGRIM NUCLEAR POWER STATION LICENSE RENEWAL In response to inquiries from Bruce Boger, Deputy Director for Reactor Safety Programs, Office of Nuclear Reactor Regulation, and Melanie Galloway, Acting Director, Division of License Renewal, this memorandum provides documentation of the U.S. Nuclear Regulatory Commission (NRC) staffs position on irreversible and irretrievable commitment of resources that would result from the proposed Pilgrim Nuclear Power Station (Pilgrim) license renewal as it pertains to the Endangered Species Act of 1973, as amended (ESA), and species and habitats protected there under.Section 7(d) of the ESA states: "After initiation of consultation required under subsection (a)(2), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2)." Similarly, the ESA regulations at 50 CFR 402.09 state that: "After initiation or reinitiation of consultation required under section 7(a)(2) of the Act, the Federal agency and any applicant shall make no irreversible or irretrievable commitment of resources with respect to the agency action with has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives which would avoid violating section 7(a)(2). This prohibition is in force during the consultation process and continues Qntil the requirements of section 7(a)(2) are satisfied."

B. Holian-2-The NRC staff has reviewed the potential for the proposed license renewal to constitute an irreversible or irretrievable commitment of resources that would foreclose the formulation or implementation of reasonable and prudent alternatives (i.e., mitigation measures to avoid impacts to Federally listed species and designated critical habitat), and the staff concludes that the proposed action would not constitute such a commitment of resources and would not prevent the NRC from implementing mitigation measures at some future point in time.During its National Environmental Policy Act (NEPA) review, the NRC staff considered potential irreversible or irretrievable commitments of resources that would result from the proposed Pilgrim license renewal in Chapter 9 of NUREG-1437, Supplement 29, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Pilgrim Nuclear Power Station" (ML072060320).

Beca ....r.n.Win the Pilgrim* licen.e would Rot reult In any new.contructin, majo plant moedifclations, Or changes in cffluonts, the license renewal will not cause any imApactS to the envieronment that would foeGlooe formulaItion OrFmlmetto of reaGonable and prudent alternatives to mitigate adverse impacts to Foderally listed Speiso designated critical habitat. TherefGFe, tThe staff did not identify any irreversible or irretrievable commitments of resources that would affect Federally listed species or designated habitat under the NMFS's jurisdiction in this document.The NRC staff also did not identify any impacts to Federally listed species or designated critical habitats under the NMFS's jurisdiction during its review under the ESA. The NRC staff concluded that the proposed license renewal would have "no effect" on Federally listed species or designated critical habitats, and the staff documented these conclusions in biological assessments dated December 2006 and February 2012 (ML063260173 and ML12047A1 19, respectively).

Under the assumption of "no effect,"T-hu, issuing a renewed license for Pilgrim would not result in any impacts to Federally listed species or designated critical habitats that would foreclose the implementation of reasonable and prudent alternatives to avoid violating section 7(a)(2) of the ESA.NMFS, hHowever, in its March 26, 2012, letter to the NRC (ML1 2087A025),-NM$FS indicated that it is unable to concur with the NRC's "no effect" determination for species under its jurisdiction, but that based on its initial review, the NMFS anticipates concluding that the proposed license renewal "may affect, but is not likely to adversely affect" listed species. In the past, whereeve8Rha4 NMFS recommendedr-.ay mitigation measures or reasonable and prudent alternatives at a fUture as a result of the GlgOing section 7 consultation, the NRC hasretains the authority to modifiedy someEnte...y'-

rFencwd operating licensees, fe a;iit.. to ensure compliance with a;y-mitigation measures or alternatives recommended by NMFS.In the past. sSuch modifications have resultedrould-reeult from a voluntary request for a license amendment from the licensee,-E-lteigy.

As an example, Florida Power & Light Co. (FPL)submitted such a request for the St. Lucie Plant, Units 1 and 2, on January 25, 2002 (ML020290224), following NMFS's May 4, 2001, biological opinion (ML01 1430173) and subsequent clarification to the biological opinion dated October 24, 2001 (ML013020208).

The license amendment request included modifications to Appendix B of the facility's operating licenses to incorporate the incidental take statement as a condition of FPL's operating licenses.NRC granted FPL's license amendment request on August 8, 2002 (ML021700271).

In this case, the license amendment ensured that the continued operation of St. Lucie did not have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives which would avoid violating section 7(a)(2). Other options may be available to B. Holian NRC.lf Entergy did not seek a licen.e amendment, the NRC cn an order modifying the conditions, of the Frnewed Iiccncse (10 CFR 2.202).In conclusion, the NRC staff has determined that )-the proposed license renewal would have"no effect" on Federally listed species or designated critical habitats and ; (2) the pr.po,. Cd aetieof-would not constitute an irreversible or irretrievable commitment of resources that would foreclose the implementation of reasonable and prudent alternatives to mitigate effects to Federally listed species or designated critical habitats (in the case that such effects had been identified).

NMFS disagree with the "no effect" finding, however, and we remain in consultation.

NRC has in the past the authe4y Wimplemented mitigation measures or reasonable and prudent alternatives where at a future date if the NRC and NMFS through section 7 consultation have determineds that the project may adversely affect any Federally listed species or designated critical habitat under 4t j-sdi+tir.

Docket No. 50-293 B. Holian-3-In conclusion, the NRC staff has determined that (1) the proposed license renewal would have"no effect" on Federally listed species or designated critical habitats; (2) the proposed action would not constitute an irreversible or irretrievable commitment of resources that would foreclose the implementation of reasonable and prudent alternatives to mitigate effects to Federally listed species or designated critical habitats (in the case that such effects had been identified);

and (3) the NRC has the authority to implement mitigation measures or reasonable and prudent alternatives at a future date if NMFS determines that the project may adversely affect any Federally listed species or designated critical habitat under its jurisdiction.

Docket No. 50-293 DISTRIBUTION:

NON-PUBLIC RidsNrrDIr Resource RidsNrrDIrRerb Resource RidsOgc Resource BBalsam DLogan DWrona JSusco LWoodall MGalloway MSmith NFerrer SUttal ADAMS Accession No: ML12129A248 OFFICE RERB:DLR RERB:DLR OGC BC:RERB:DLR NAME BBalsam DLogan MSmith JSusco DATE OFFICIAL RECORD COPY Craver, Patti From: Logan, Dennis Sent: Thursday, May 10, 2012 1:50 PM To: Balsam, Briana

Subject:

RE: Pilgrim memo to file Also, I am having trouble with the conclusion that"the NRC has the authority to implement mitigation measures or reasonable and prudent alternatives at a future date if NMFS determines that the project may adversely affect any Federally listed species or designated critical habitat under its jurisdiction." This is a legal conclusion that, frankly, I do not believe we are qualified to make.From; Balsam, Briana Sent: Thursday, May 10, 2012 11:04 AM To: Logan, Dennis

Subject:

Pilgrim memo to file Dennis, Do you have time today to look at the Pilgrim memo to file from ADAMS and concur via email today? I just got it back from Sylvia, and ideally, we want it out by the end of the week.The ADAMS No. is ML12129A248.

It's only 2 pages of text, so hopefully it won't take too much time!Thanks, Briana I