ML18081A888

Opposition to Intervenors Coleman 791018 Request for Action Under 10CFR2.206.NRC Fulfilled Statutory Duty Per Endangered Species Act.No New Matters Raised by Intervenors Request

ML18081A888
Person / Time
Site:	Salem, Hope Creek, 05000355
Issue date:	01/10/1980
From:	WETTERHAHN M J CONNER, MOORE & CORBER, Public Service Enterprise Group
To:
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ML18081A886	List: ML18081A885 ML18081A888 ML18081A889 ML18081A890
References
NUDOCS 8001110489
Download: ML18081A888 (19)

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• COMMENTS OF PUBLIC SERVICE ELECTRIC AND GAS COMPANY, ET AI.., ON THE REQUEST OF ELEANOR G. AND ALFRED C. COLEMAN, JR. FOR THE ISSUANCE OF AN ORDER TO SHOW CAUSE I. Preliminary Statement On October 18 , 1.9 7 9 , Mr. and Mrs. Alf red C. Coleman, Jr. submitted petitions to the Nuclear Regulatory Commission

("NRC") which seek the issuance of an order to show cause, or, alternatively, suspension and/or revocation of the operating license for Salem Unit 1 and suspension and/or revocation of the construction permits and a stay of li-censing for Salem Unit 2 and the Hope Creek Station, Units 1 and 2. On November 23, 1979, tP,e Director of the Office of Nuclear -Reactor Regulation published notice in the Federal Register (44 Fed. Reg. 67253) stating that he will treat the -petitions as requests for action under 10 C.F.R. §2.206. Public Service Electric and Gas Company, et al., the holder of Operating License DPR-70 and Construction Permit Nos. CPPR-120 and 121 for Salem Unit 2 and Hope Creek Units 1 and 2, respectively

("Licensee"), opposes the relief sought on the grounds that petitioners have failed to satisfy the requirements for issuance of an order to show cause and have failed to demonstrate any grounds for the extraordinary relief of license suspension or revocation and a stay of ongoing proceedings.

Stripped of mere rhetoric, the petitions merely point out.that the NRC has responsi-

. , . I

• bilities under the Endangered Species Act of 1973, 16 U.S.C. §1531 et seq., to consult with the proper Federal authority, in this instance, the National Marine Fisheries Service, in order to utilize its regulatory authority so as not to jeopardize the continued existence of any endangered species. Since the NRC has already undertaken the appropriate action on its oWn initiative, there is no need for an order to show cause proceeding or the other emergency relief requested in the petition.

The Colemans have raised no factual or legal issues nor demonstrated that they could make any tion to a hearing, if held. Furthermore, as demonstrated by the attached affidavits of Robert P. Douglas and Victor J. Schuler, the facts of this case clearly show that the Salem and Hope Creek Stations would not jeopardize the continued existence of the shortnose sturgeon.

As discussed below, such a conclusion is based on exhaustive studies of the Delaware River in the area of Artificial Island for over ten years by leading natural scientists, knowledge of the shortnose sturgeon, and the design of the intake structures of the stations such as to minimize the effects of impingement.

II. Background The Coleman petitions are largely recitations 0£ statutory provisions, many of them inapplicable to the duties of the NRC in the present instance, and excerpts from the Final

.. .-* Environmental Statement

("FES") for Salem Nuclear Generating Station, Units 1 and 2. After quoting a portion of the FES in Section 2.1 relating to site location and certain eco-logical studies conducted by Ichthyological Associates, consultants to the Licensee, the petitions go on to note that the shortnose sturgeon is an endangered species. The petitions then note the responsibility of federal agencies, including the NRC, to protect endangered species from "man-_y made factors affecting its continued existence." The petitions state that there does not exist any known environ-mental impact analysis and/or statement which discusses endangered or threatened species or species of special 2/ concern or their critical habitat--as these relate to Artificial Island (the site of the Salem and Hope Creek facilities).

Finally, the petitions state that, s'Qbject to certain statutory exceptions, it is unlawful for any person subject to the jurisdiction of the United States, to take an endangered species. The petitions then list four conten-tions which, in general, assert that the Licensee has not provided sufficient information to demonstrate the "measures that shall be taken to protect, guarantee and insure that no Petition at 4 (emphasis deleted).

The shortnose sturgeon is the only such species mentioned in the petitions.

A review of 50 C.F.R. §17.95(e) that there is no "critical habitat" designated for the shortnose sturgeon at this time.

.. .....

• adverse action shall jeopardize the continued existence of any Endangered, Threatened or Of Special Concern Species." _y III. Factual Analysis At the outset, it is important to place the discovery of the two shortnose sturgeon specimen in. perspective.

This _y is not a case where an entire species is endangered; in addition, no critical habitat is involved.

The two specimens in question, one of them_ undeniably dead long before it contacted the Salem intake structure and the other severely debilitated before it encountered the Salem intake, are the 21 first encountered in ten years of intensive observations.

In order to present the facts concerning relevant design information of the Salem and Hope Creek Stations and the information regarding the life history of the shortnose ecological studies, and basis for the conclusions regarding the shortnose sturgeon in one location, the Affidavits of Robert P. Douglas (hereinafter "Douglas")

and Victor J. Schuler (hereinafter

• "Schuler")

are attached hereto and incorporated by reference herein. As the NRC and all cognizant state and federal agencies have already been informed, the Licensee is aware of only Petition .at 5. Cf. Tennessee Valley Authority

v. Hill, 437 U.S. 153, 98 s.ct. 2279 (1978). See the Affidavit of Victor J. Schuler at ,l,l 21-22 which is attached hereto.

-5 three occasions in which shortnose sturgeon have been dis-covered at the*Salem facility or as the result of sampling activity associated with it as required by various govern-mental agencies.

One shortnose sturgeon removed from the trash racks of the circulating water intake was dead and badly decomposed, indicating that the specimen was dead long before it reached the water intake structure (Schuler, ,[21) . A second specimen was found in the inclined trash screen dumpster and had been lifted via the travelling screens. This fish lived approximately fifteen hours and was found to have beeri in a severely debilitated condition, evidenced by a retracted abdomen which allowed it to pass through the three-inch distance between the trash bars (Douglas, ,17, Schuler, ,!22). A healthy shortnose sturgeon could have easily resisted the pull from the intake flow and would have been too large, in an unimpaired condition, to fit through the trash bars, which are only three inches apart (Schuler, ,!,! 13, 22). A third Shortnose sturgeon was discovered during the course of a trawl sample required under a program initiated pursuant to Section 316(b) of the 6/ Clean Water and approved by the Environmental Pro-tection Agency. A meeting was convened by the NRC on Clean Water Act, 33

.. §1251 et seq. The sampling is also noted in the Licensee's radiological Environmental Technical Specifications (Appendix B) by virtue of Amendment 19 to the operating license for the Salem Nuclear Generating Station, Unit No. 1, issued on September 12, 1979.

• October 29, 1979 to discuss these discoveries with rep:te-sentatives of the Fish and Wildlife Service, the National Marine Fisheries Service (nNMFS"), the Environmental Pro-tection Agency (nEPA"), representatives of the States of New Jersey and Delaware, the Colemans, and the Licensee.

The NRC initiated the formal consultation process described in Section 7(a)* of the E11dangered Species Act, 16 U.S.C. §1536(a).

On December 7, 1979, the biological opinion required under _1/ that section was transmitted by NMFS. The biological opinion states that the identified activity is neither likely to jeopardize the continued existence of the shortnose sturgeon nor to destroy or adversely modify habitat that may be critical to it. The letter also states that the NRC may also want to consult with NMFS at an appropriate time regarding the proposed activities associated with the other units. Since the NRC has-formally initiated consultation procedures under the Act and received the requested views of the NMFS, there is no reason for the NRC to institute a proceeding at this time unless NMFS or the NRC makes a finding that the continued existence of the species is or may be threatened.

_J_I See letter of December 7, 1979 from Terry L. Leitzel! to William H. Regan with regard to Salem Unit 1. Licensee submits that unless an unfavorable tative report is submitted by NMFS regarding Salem Unit 2 or the Hope Creek units, there is no need for a hearing.

.. IV. Argurnen t A. The Continued Existence of the Shortnose Sturgeon Is Not Jeopardized by the Continued Operation and Construction of the Salem Nuclear Generating Station and the Hope Creek Generating Station. Nothing has been presented by petitioners which would in fact require a hearing: the Colemans present no facts *whatsoever to show that the continued existence of the shortnose sturgeon is and they claim no ex-pertise or access to experts to support such a proposition.

In contrast, the attached affidavits of Douglas of PSE&G and Schuler, a recognized expert in ichthyology who has devoted-over ten years to the study of the Delaware estuary and directed a number of life scientists in comprehensive eco-logical studies over that period, reveal that it is extremely unlikely that the shortnose sturgeon's existence would be affected significantly, let alone jeopardized as a result of the Salem and Hope Creek Stations.

The evolution of the des*ign of the intake structure for the Salem Station, in-cluding*the addition of horizontal water-filled fish vival buckets on the travelling screen baskets, a low pressure-rear-spray-wash fish removal system, enlarged rear fish and trash sluiceways, the capability to return fish to the river from the north and south sides of the circulating water intake structure, continuous travelling screen opera-tion and fish counting pools (Douglas, ,f,I 6-10), reveals the significant efforts of the Licensee to anticipate or mitigate

.. any potential significant, adverse environmental impact. For the Hope Creek Station various intake designs and sub-systems are being considered in order to assure that the fullest consideration of entrainment and impingement are included as design inputs. Moreover, the Hope Creek units utilize closed cycle cooling, reducing considerably the amount of water needed for operation of these facilities.

For these reasons, the effect of operation of the Hope Creek units would be quite small (Douglas, ,[,! 11-15; Schuler, ,!28 (f)). Based upon the knowledge of the life cycle of the shortnose sturgeon in the Delaware River Estuary and in other locations, the ecological investigation of the Delaware River (which extends from the mouth of Delaware Bay (RM 0) to Wilmington, Delaware (RM 73)), the design and experience with the operation of the Salem Station, and the design concept of the intake system of the Hope Creek Station, operation of the plants will not jeopardize the continued existence of the shortnose sturgeon population.

As stated by Schuler, at paragraph 28: a. No entrainment of shortnose sturgeon eggs or larvae through the cooling water systems of these plants is expected.

Based on the locations of spawning grounds in other estuaries and the capture of ripe females in the Delaware River Estuary, spawning is ferred to occur only in the upper tidal freshwater reaches far stream of Artificial Island.

.. . . ' ,__,. Eggs are demersal and adhesive, and early larvae remain closely associated with the spawning strate and rarely enter river drift. b. Juvenile shortnose sturgeon are expected to remain in freshwater until they are 45 cm in length and therefore would not be available or vulnerable to the plants' intakes. c. Adult shortnose sturgeon are expected to utilize the river near Artificial Island only during spring and fall principally as a migratory route between downbay overwintering areas and upriver spawning and foraging areas. There is no evidence that a habitat for the Shortnose Sturgeon exists at or near Artificial Island. d. Even when shortnose sturgeon are present near the Salem intake healthy individuals are not expected to be impinged since their swim speed greatly exceeds the intake current velocity which averages 0.3 m/s. Juvenile shortnose sturgeon (15-35 cm) have strated maximum swim speeds of ca. 2 body lengths per second. In addition, even cruising speeds of adults averaged over 6-11 hr periods were. found to be frequently in excess of the mean intake velocity.

e. Even in the unlikely event that a shortnose sturgeon were impinged at Salem it would most likely be returned to the river in good condition by the fish-return system. f. The Hope Creek Generating Station will employ closed cycle cooling via natural draft cooling towers and, as such, will require relatively small amounts of water from the river, thus greatly the probability of impingement or entrainment.

Further, there has been intensive consideration of various subsystems to even further minimize entrainment and impingement losses of life stages of all fish.

.. _, B. The Endangered Species Act Does Not Require the Institution of a Show Cause Proceeding.

The sole legal basis of the petitions for an order to show cause *and other relief as filed by the Colemans is the Endangered Species Act of 1973, as amended, 16 u.s.c. §1531 et seq. The Act declares the policy of Congress to be "that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter." Pursuant to this purpose, Congress enacted certain provisions calling for interagency cooperation contained in Section 7 of the Act. As initially enacted, Section 7 contained only a genera1 requirement that all Federal de-partments and agencies consult with the Secretary of the Interior or his statutory delegate to further the purposes of the Act: . by carrying out programs for the conservation of endangered species and threatened species . . . and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such dangered and threatened species or result iri the destruction or cation of habitat of such species which is determined by the Secretary, after consultation as appropriate with the affected States, to be critical. 16 u.s.c. §1536 '(1973).

.. In 1978, Congress amended the Endangered Species Act to expand and make more explicit the obligations of Federal agencies to consult with the Secretary of the Interior and receive his advice as to endangered or threatened species, including his recommendations for reasonable and prudent alternatives to avoid jeopardizing the continued existence

• of any endangered species. Significantly, Congress retained the standard by which Federal agency actions were to be judged in utilizing agency authority in furtherance of the Act by ca.rrying out programs for the conservation of en-dangered and threatened species. Federal agencies were again directed to "insure that any action authorized, funded, or carri.ed out by such agency . does not jeopardize the continued existence of any endangered species 21 or threatened species." Section 7 now provides that the Secretary shall respond to the Federal agency with a written statement setting forth his opinion as to how the agency action.affects an endangered species or its critical habitat. The Secretary also is required to suggest "those reasonable and prudent alternatives which he believes would avoid jeopardizing the continued existence of any endangered or 16 u.s.c. §1536(a) (emphasis added). We do not further discuss the provisions of Section 7 taining to destruction or adverse modification of a critical habitat, inasmuch as there has been no critical habitat designated for the shortnose sturgeon.

See 50 C.F.R. §17.95(e).

Also, the petition presents no issue relating to protection of any habitat of the shortnose sturgeon.

.. -.. threatened species ... , and which can be taken by the Federal agency or the permit or license applicant in im-10/ plementing the agency action." The 1978 Amendments also added to Section 7 a prohibition against making "any ir-reversible or irretrievable commitment of resources" which "has the effect of foreclosing the formulation or tation of any reasonable and prudent alternative measures which would avoid jeopardizing the continued existence 11/ o.f any endangered or threatened species."-

The plain language and comprehensiveness of Section 7, which consistently reiterates the controlling standard that *Federal action may not "jeopardize the continued existence" .of an endangered species, reflect an unmistakable Congres-sional intent that the activities and programs of Federal agencies and their licensees be governed.by the specific _provisions of Section 7 rather than any other generalized provisions of the Act. Therefore, it is clear that by fulfilling its duties under Section 7, the NRC has carried out its entire responsibility under the Endangered Species Act. The underpinning of the Coleman petition is the er-roneous assumption that the general prohibition of Section 9 10/ 16 u.s.c. §1536{b).

11/ 16 u.s.c. §1536{d).

' . -13 12/ of the Act against a "taking" of an endangered species is applicable to the activities and programs of Federal agencies and Federal licensees subject to Section 7. The construction of the statute suggested by petitioners is patently incorrect.

The activities-of a party holding an NRC operating license or construction permit are clearly actions "authorized" by a Federal agency within the meaning of Section 7 of the Act, 16 u.s.c. §1536(a).

Elsewhere, Section 7 expressly refers to the activities of a Federal 13/ permit or license By contrast, the generalized prohibition against taking under Section 9 makes no such ex-_press reference to Federal agencies or Federal licensees.

• Thus, Congress clearly intended the activities and programs .of Federal agencies and their licensees to be governed by *the more specific provisions o_f Section 7 which, as noted, require an agency to insure against "jeopardizing the con-tinued existence" of an endangered species, but do not prohibit incidental and inconsequential "takings." Indeed, the Amendment of the Endangered Species Act of 1978, particularly Section 7, was intended by Congress to divest the statute of an inflexible literalism that did not embody the true will of Congress.

The House Report of the Merchant Marine and Fisheries Committee stated that one of 12/ 16 u.s.c. §1536(b), (d) and (g)(l). 13/ Id. -

f1' ' . the purposes of the 1978 Amendments was "to introduce some . 14/ flexibility into the Act."-In its report, the Committee had critically reviewed the famous Tellico Dam case, Tennessee Valley Authority

v. Hill, 437 U.S. 153 (1978), and two other lower court cases, which construed the Act to require a determination whether a particular activity vio-lates Section 7 "irrespective of the economic importance of 15/ the activity w "-In all of the discussions within the House report of the consultation process administered by the Fish and Wildlife Service and the National Marine Fisheries Service, the case law under Section 7, and consideration of threatened or endangered species in federally authorized activities, there is no suggestion whatever by the Committee that a Federal agency or Federal licensee is subject to a more stringent prohibition than not to "jeopardize-the 16/ continued existence" of a listed species. The NRC's Atomic Safety and Licensing Appeal Board has already addressed the application of the Endangered Species Act in NRC licensing in the Hartsville proceeding wherein it reaffirmed that Section 7 is the controlling standard, i.e., that Federal agencies are required to take such action necessary to ensure that actions authorized by them do not 7 U.S .. Code Cong. & Legis. News 9453 (1978). Id. at 9461. It should be noted *that an exemption under Section 7 is permissible even if the activities or program would result in the total eradication of an endangered species. See 16 u.s.c. §1536 (h) (2) (B).

. . . .. . . jeopardize the continued existence of an endangered species. The Board expressly rejected the argument that .the Act re-* quires a finding that operation of a nuclear plant "will not 17/ have any adverse affect [on an endangered species] " It further found that "[I]nsignificant effects are not 18/ proscribed on the statute."-

In addition, the Appeal Board found that the proper evidence of proof of nonjeopardy was that of a preponderance of the evidence and not any higher 19/ standard.-

Moreover, the NRC Staff itself has consistently taken the position that the Commission's responsibilities under the Endangered Species Act are limited to compliance with Section 7. For example, Section 2.7.2.5 of the Draft En-20/ vironmental Statement in the Montague proceeding-discusses the existence of a population of approximately.

300 shortnose sturgeon in the pool adjacent to the facility's intake structure.

The Staff analysis clearly recognizes that at Tennessee Valley*Authority (Hartsville Nuclear Plant, Units lA, 2A, lB and 2B), ALAB-463, 7 NRC 341, 360 (1978) (emphasis in original).

The Board further stated that "if we find, .under Section 7 of *the Act, that no significant adverse effects will accrue to [an dangered species, it] will not suffer 'harm' under Section 9." Id. at 367 n.114. Id. Id. Northeast Utilities (Montague Units 1 and 2), NRC Docket Nos. 50-496 and 50-497.

.. . ---16 -21/ least some_ number of Sturgeon egg and are likely to be entrained by operation of the facility.

Moreover, in responding to intervenor interrogatories addressed to the NRC Staff in the Montague proceeding, the Staff replied to the following questions:

Question 6 The Shortnose Sturgeon are a rare and endangered species; does the Staff believe that this species can withstand less stress than other, more abundant species? ..*. Answer The Staff has not performed a general analysis of the degree or amount of stress that the Shortnose Sturgeon in the Connecticut River can withstand without threat to its continued ence (both short and long term). However, the only question that has to be answered with respect to the nose Sturgeon in the Connecticut River is whether the impacts from the Montague Station intake and charge structure would jeopardize the continued existence of this dangered species or result in the destruction or modification of any habitat of this species determined to be critical.

The facts we have presented in response to Question No. 3 tend to indicate the intake structure at the Montague facility will not be a factor that will have an impact on the Shortnose Sturgeon's 21/ Under the Act, the term "fish" includes any "part, product, egg, or offspring thereof." 16 u.s.c. §1532(8).

• 1:*

.. ' .,. -* critical habitat or jeopardize its continued existence.

The effects of the discharge on the Sturgeon remain to be reevaluated by the Staff, in consultation with the National Marine Fisheries Service. . . . . . . . *. . . . . . . . . . . . Question 8 Does the Staff agree that the applicant must demonstrate that no Shortnose Sturgeon will be taken as a result of the proposed intake? If not, explain. Answer No. Again, the Staff believes that the question is outside the usual meters of discovery since it is not

• designed to elicit actual information.

However, our reading of the Endangered Species Act does not in any way make it clear that the applicant must demonstrate that no Shortnose Sturgeon will be taken as a result of the proposed intake. The Act, as presently interpreted, does not say so. 22/ Further it is a matter of record that shortnose sturgeon have from time to time been impinged by the intake structure of several licensed nuclear power plants. In testimony proffered by the.National Marine Fisheries Service before the Environmental P:to tection Agency . ("EPA" ) in the Hudson River NPDES case, Docket No. C/II-WP-77-01, which the NRC Staff is monitoring, Dr. Michael J. Dadswell cites and d*iscusses numerous instances of entrainment and impingement by nuclear power plants on the Hudson River. At page 12 of 22/ NRC Staff Answers to Interrogatories in Attachment to Letter dated December*

12, 1977 from Edward G. Ketchen, Jr. to Ellen R. Weiss.

.. '* his testimony, Dr. Dadswell states: "Assuming the accuracy, of all of [the data from other studies], impingement of Shortnose may run as high as 50 fish a year." Dr. Dadswell's conclusions were based on counts and estimates from the Bowline, Roseton, Lovett, and Danskammer and Indian Point 23/ facilities from 1972 through * . Conclusion The NRC has fulfilled its statutory duty under Section 7 of the Endangered Species Act to consult with the National Marine Fisheries Service to obtain the opinion and recom-mendations of that agency as to whether the operation of the intake structures are likely to jeopardize the continued existence of the shortnose sturgeon.

The Colemans have not raised any matter which requires the holding of a hearing. The petitions for a hearing are merely generalized, com-pletely unsupported statements, and present nothing which would indicate that the shortnose sturgeon is jeopardized by the Hope Creek or Salem units. The Colemans have not as-serted or shown that they have any expertise in this matter or could make any contribution if a hearing WP.re held. A 23/ It is also significant that the conclusion of Dr. Dadswell's testimony takes the format of an analysis under Section 7 of the Endangered Species Act to the effect that "the once-through cooling system of the power plant involved in this case is not likely to jeopardize the continued existence of the Shortnose Sturgeon because, even assuming 100% mortality of impinged fish, its contribution to the natural annual mortality is negligible." Testimony at 16-17.

. . . ' * '.\l show cause proceeding and the other emergency relief sought by the petitions are therefore inappropriate and unwarranted under the circumstances.

Accordingly, the petitions for an order to show cause and other emergency relief should be denied.