ML13275A010

Appendix a to NRC Staff'S Answer to Riverkeeper, Inc. Consolidated Motion for Leave to File Amended Contention RK-EC-8A, and Amended Contention RK-EC-8A

ML13275A010
Person / Time
Site:	Indian Point
Issue date:	10/01/2013
From:	Sherwin Turk NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 25134, ASLBP 07-858-03-LR-BD01, 50-247-LR, 50-286-LR
Download: ML13275A010 (8)

Text

October 1, 2013 APPENDIX A TO NRC STAFFS ANSWER TO RIVERKEEPER, INC. CONSOLIDATED MOTION FOR LEAVE TO FILE AMENDED CONTENTION RK-EC-8A AND AMENDED CONTENTION RK-EC-8A Consultations between the NRC Staff (Staff), Entergy Nuclear Operations, Inc. (Entergy or Applicant) and the National Marine Fisheries Service (NMFS) are reflected, inter alia, in the following communications: 1 Communications Prior to Filing of Contention RK-EC-8

• On August 16, 2007, the Staff requested information from NMFS regarding Federally listed, proposed, and candidate species, critical habitat, and designated essential fish habitat in the vicinity of IP2/IP3. 2

• On October 4, 2007, NMFS responded to the Staffs letter of August 16, 2007, indicating that the endangered shortnose sturgeon and candidate species Atlantic sturgeon should be considered for potential impacts of license renewal and operation. 3

• On December 22, 2008, the Staff initiated consultation with NMFS, upon the issuance of the Staffs Draft Supplemental Environmental Impact Statement 4 and the Staffs original Biological Assessment (BA), finding that license renewal of Indian Point Units 2 and 3 (IP2 and IP3 could adversely affect the shortnose sturgeon. 5 1

Various communications involving Riverkeeper and New York, who were not consulting parties under Section 7 of the Endangered Species Act (ESA), are also listed herein, in italics.

2 Letter from R. Franovich, NRC, to P. Colosi, NMFS (Aug 16, 2007) (ADAMS Accession No. ML072130388), reprinted in Appendix E of the FSEIS (Exhibit NYS00133B), at E E-15.

3 Letter from M. Colligan, NMFS, to Chief, Rules and Directives Branch, Office of Administration, NRC (Oct. 4, 2007) (ADAMS Accession No. ML073340068), reprinted in Appendix E of the FSEIS (Exhibit NYS00133B), at E E-79.

4 NUREG-1437, Supplement 38, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Draft Report for Comment (Dec. 2008) (DSEIS) (Exhibit NYS00132A-D) (ADAMS Accession No. ML083570601).

5 See Letter from D. Wrona, NRC, to M. Colligan, Assistant Regional Administrator for Protected Resources, NMFS (Dec. 22, 2008) (ADAMS Accession No. ML083450723), reprinted in Appendix E of the FSEIS (Exhibit NYS00133B), at E E-90); see also Biological Assessment of the Potential Effects on Federally Listed Endangered or Threatened Species from the Proposed Renewal of Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 (Appendix E to DSEIS (Exhibit NYS00132A-D) (ADAMS Accession No. ML083570601), at E E-102 (Attachment 1 hereto).

A-2

• On February 24, 2009, NMFS requested additional information from the Staff, in response to the Staffs original BA. 6

• On July 1, 2009, the Staff obtained the information requested by NMFS, from the Applicant. 7

• On August 10, 2009, the Staff transmitted to NMFS the information it had requested (including revised impingement data), and stated that the Staff would address these data in the FSEIS and in a revised BA to be sent to NMFS. 8

• On December 3, 2010, the Staff issued its FSEIS 9, in which it, inter alia, addressed the potential impacts of license renewal on endangered and threatened species, described the status of its consultations with NMFS, and indicated that NMFS would issue a BiOp setting out reasonable and prudent measures to be undertaken by the Applicant and the terms and conditions required for compliance with the Section 7 consultation. 10

• On December 10, 2010, the Staff transmitted its revised BA to NMFS, providing the Staffs assessment of the impacts of IP2/IP3 license renewal on endangered and threatened species. 11 6

Letter from M. Colligan, NMFS, to D. Wrona, NRC (Feb. 24, 2009) (ADAMS Accession No. ML090820316), reprinted in Appendix E of the FSEIS (Exhibit NYS00133B), at E E-95 (requesting information including corrections to the life history and status information for the shortnose sturgeon in the Hudson River, updated information or estimates of the impact of impingement on shortnose sturgeon, information regarding the thermal impacts on shortnose sturgeon, and clarification regarding the possible installation of cooling towers).

7 Letter from F. Dacimo, Entergy, to D. Wrona, NRC (July 1, 2009) (ADAMS Accession No. ML091950345) (Attachment E to NRC Staffs Answer to Riverkeeper, Inc.s Motion for Leave to File a New Contention, and New Contention EC-8 Concerning NRC Staffs Final [SEIS] (Mar. 7, 2011) (Staff Answer to Initial Contention)).

8 E-mail message from D. Logan, NRC, to J. Crocker, NMFS (Aug. 10, 2009) (ADAMS Accession No. ML092220524) (Attachment F to Staff Answer to Initial Contention) (Attachment 2 hereto).

9 NUREG-1437, Supplement 38, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Final Report (Dec.

2010) (FSEIS) (Exhibit NYS00133A-J) (ADAMS Accession Nos. ML103350405 (Vol. 1); ML103350438, ML103360209, and ML103360212 (Vol. 2); and ML103350442 (Vol. 3).

10 FSEIS (Exhibit NYS00133B) (ADAMS Accession No. ML11348A347), § 4.6, at 4-57 and 4-60 (Attachment 3 hereto).

11 Letter from D. Wrona, NRC, to M. Colligan, NMFS (Dec. 10, 2010), enclosing Revised Biological Assessment of the Potential Effects on Federally Listed Endangered or Threatened Species from the Proposed Renewal of Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 (Dec. 10, 2010)

(ADAMS Accession No. ML102990043) (revised BA) (Attachment 4 hereto).

A-3 Communications Subsequent to the Filing of Contention RK-EC-8

• On February 16, 2011, NMFS formally responded to the Staffs letter of December 10, 2010, stating, inter alia, that NMFS had all the information it needed to complete a formal consultation and indicating that formal consultations had commenced. 12

• On March 9 and 11, 2011, the Staff held telephone conferences with NMFS as part of the consultations under Section 7 of the ESA. 13

• On April 18, 2011, the Staff held a public meeting (attended by NMFS, the Applicant, Riverkeeper and the New York State Department of Environmental Conservation (NYSDEC) to discuss the Applicants data on shortnose sturgeon and Atlantic sturgeon in the vicinity of IP2 and IP3. 14

• On June 16, 2011, the Staff informed NMFS that the results of the Applicants recently completed thermal studies, and other related documents, were available on NYSDECs Indian Point website. 15

• On June 20, 22, and 29, 2011, the Staff held a series of telephone conferences with NMFS and the Applicant, to discuss various matters involved in their consultations under Section 7 of the ESA. 16

• On July 26, 2011, the Staff transmitted a supplement to its revised BA to NMFS, to address the updated thermal information and the impact of IP2/IP3 license renewal on endangered and threatened species. 17 12 Letter from P. Kurkul, NMFS, to D. Wrona, NRC (Feb. 16, 2011) (ADAMS Accession No. ML110550751) (Attachment I to Staff Answer to Initial Contention). On March 1, 2011, Entergy notified the Staff that it would participate in the consultation process. See Letter from F. Dacimo, Entergy, to A. Stuyvenberg, NRC (Mar. 1, 2011) (ADAMS Accession No. ML110670270) (Attachment J to Staff Answer to Initial Contention).

13 Summary of Telephone Conference Calls Held on March 9 and 11,2011, Between the [NRC]

and [NMFS] Concerning Entergy's Request for Extended Endangered Species Act Consultation Related to the Proposed [IP2 and IP3] License Renewal (Apr. 14, 2011) (ADAMS Accession No. ML11089A031).

14 Summary of Public Meeting Held on April 18, 2011, Between the [NRC] and [Entergy] to Discuss Entergy's Shortnose Sturgeon and Atlantic Sturgeon Data at [IP2 and IP3] (Apr. 22, 2011)

(ADAMS Accession No. ML111090905).

15 E-mail from A. Stuyvenberg, NRC, to J. Crocker, NMFS (June 16, 2011) (ADAMS Accession No. ML11167A108).

16 Summary of Telephone Conference Calls Held on June 20, June 22, and June 29, 2011, Regarding the Ongoing Endangered Species Act Consultation for the Proposed [IP2 and IP3] License Renewal (July 29, 2011) (ADAMS Accession No. ML11201A306).

17 Letter from L. Bauer, NRC to M. Colligan, NMFS (July 26, 2011) (ADAMS Accession No. ML11203A100) (Attachment 5 hereto).

A-4

• On August 26, 2011, NMFS issued its draft Biological Opinion, and requested that the Staff provide its and the Applicants comments thereon. 18

• On September 6, 2011, the Staff transmitted two E-mail messages to NMFS, providing the Staffs and Entergys comments on the initial draft BiOp. 19

• On September 15, 2011, Riverkeeper (although not a party to the ESA consultation process) submitted its comments to NMFS on the draft BiOp. 20

• On September 20, 2011, the Staff responded to the substantive statements in NMFSs letter of August 26, 2011, and requested information from NMFS concerning an additional species (Atlantic sturgeon). 21

• On September 28, 2011, the Staff transmitted an E-mail to NMFS, providing its evaluation of Entergys comments of September 21, 2011, concerning the impacts of license renewal. 22

• On October 14, 2011, NMFS issued its initial BiOp, addressing the impacts of license renewal on the endangered shortnose sturgeon, including an Incidental Take Statement and reasonable and prudent measures to be taken by the Applicant in accordance therewith. 23

• On May 16, 2012, the Staff wrote to NMFS, requesting the reinitiation of consultations under Section 7 of the ESA to address Indian Points impacts on the Atlantic sturgeon (listed as endangered in February 2012), and providing a new Biological Assessment in support of that request. 24 18 Letter from P. Kurkul, NMFS, to D. Wrona, NRC (Aug. 26, 2011) (ADAMS Accession No. ML11249A012).

19 See (1) E-mail from A. Stuyvenberg, NRC, to J. Crocker, NMFS (Sept. 6, 2011) (ADAMS Accession No. ML11249A210) (Attachment 6 hereto); (2) E-mail from A. Stuyvenberg, NRC, to J.

Crocker, NMFS (Sept. 6, 2011) (ADAMS Accession No. ML11249A145) (Attachment 7 hereto).

20 Letter from D. Brancato, Esq., Riverkeeper, to P. Kurkul, et al., NMFS (Sept. 15, 2011) (Motion, ).

21 Letter from D. Wrona, NRC, to P. Kurkul, NMFS (Sept. 20, 2011) (ADAMS Accession No. ML11259A018) (Attachment 8 hereto).

22 E-mail from A. Stuyvenberg, NRC, to M. Murray-Brown, et al., NMFS (NRC staffs review of Entergys 9-21 response) (Sept. 28, 2011) (ADAMS Accession No. ML11271A154) (Attachment 11 hereto).

23 Letter from P. Kurkul, NMFS, to D. Wrona, NRC (Oct. 14, 2011) (ADAMS Accession No. ML11290A232): Biological Opinion for Relicensing - Indian Point Nuclear Generating Station (Oct.

14, 2011) (ADAMS Accession No. ML11290A231).

24 Letter from J. Susco, NRC, to P. Kurkul, NMFS (May 16, 2012), requesting reinitiation of ESA Section 7 consultations and transmitting Biological Assessment for Reinitiation of Section 7 Consultation

A-5

• On June 26, 2012, the Staff issued its draft Supplement to the FSEIS, addressing new information the Staff had received concerning entrainment, impingement, the thermal effects of once-through cooling, NMFSs BiOp regarding shortnose sturgeon, and the reinitiation of consultations under Section 7 of the ESA. 25

• On July 23, 2012, Entergy submitted new information concerning Atlantic sturgeon to NMFS and the Staff. 26

• On August 3, 2012, NMFS requested an extension of the consultation period, to afford it sufficient time to evaluate the new information it had received from Entergy; the Staff responded to this request on August 13 and 17, 2012. 27

• On August 20, 2012, Riverkeeper submitted comments to the Staff regarding the Draft FSEIS Supplement. 28

• On August 20, 2012, NYSDEC submitted comments to the Staff regarding the Draft FSEIS Supplement. 29

• On August 20, 2012, the New York Office of the Attorney General (NYAG) submitted comments to the Staff regarding the Draft FSEIS Supplement. 30

• On September 12, 2012, the Staff, NMFS, and Entergy held a conference call to discuss NMFSs questions on Entergys newly submitted information. 31 for [IP2 and IP3] Due to Listing of Atlantic Sturgeon (May 2012) (ADAMS Accession No. ML12100A082)

(Attachment 9 hereto).

25 See (1) Letter from S. Turk to the Board (June 26, 2012);and (2) Draft FSEIS Supplement (June 2012) (ADAMS Accession No. ML12174A244) (Attachment 10 hereto).

26 E-mail from D. Gray, Entergy, to J. Crocker, NMFS, and M. Wentzel, NRC (July 23, 2012),

(ADAMS Accession No. ML12206A028).

27 See (1) Letter from D. Morris, NMFS, to Dr. A. Hull, NRC (Aug. 3, 2012) (ADAMS Accession No. ML12216A209); (2) E-mail from D. Logan, NRC, to J. Crocker, NMFS (Aug. 13, 2012) (ADAMS Accession No. ML12226A318); and (3) letter from Dr. A. Hull, NRCC, to D. Morris, NMFS (Aug. 17, 2012)

(ADAMS Accession No. ML12221A033).

28 See Letter from D. Brancato, Esq., Riverkeeper, to Chief, Rules, Announcements, and Directives Branch (RADB), NRC (Aug. 20, 2012) (ADAMS Accession No. ML12236A207), reproduced in FSEIS Supplement (ADAMS Accession No. ML13162A616), Appendix A, at A A-15.

29 See Letter from E. McTiernan, Esq., NYSDEC, to C. Bladey, Chief, RADB, NRC (Aug. 20, 2012) (ADAMS Accession No. ML12235A149), reproduced in FSEIS Supplement (ADAMS Accession No. ML13162A616), Appendix A, at A A-23.

30 See Letter from J. Sipos, Esq., NYAG, to Cindy Bladey, Chief, RADB, NRC (Aug. 20, 2012)

(ADAMS Accession No. ML12235A409), reproduced in FSEIS Supplement (ADAMS Accession No. ML13162A616), Appendix A, at A A-34.

A-6

• On October 26, 2012, NMFS issued its draft BiOp concerning the impacts of IP2/IP3 operation on the endangered shortnose sturgeon and Atlantic sturgeon. 32

• On November 9, 2012, Entergy submitted its comments on the draft BiOp to the Staff, for transmittal to NMFS. 33

• On November 9, 2012, the Staff transmitted Entergys comments, along with the Staffs comments, to NMFS, concerning NMFSs draft BiOp. 34

• On November 23, 2012, Riverkeeper (although not a party to the ESA Section 7 consultations) submitted its comments to NMFS regarding the draft BiOp. 35

• On November 26, 2012, the Staff and NMFS held a telephone conference to discuss comments on the draft BiOp. 36

• On January 8 and 9, 2013, telephone conferences were held among NMFS, the Staff and Entergy to discuss various concerns related to the draft BiOp. 37

• On January 10, 2013, Entergy provided additional comments to NMFS regarding the draft BiOp. 38 31 See (1) E-mail from J. Crocker, NMFS, to B. Balsam, NRC, forwarding teleconference notes (Sept. 19, 2012) (ADAMS Accession No. ML12269A424); (2) E-mail from B. Balsam, NRC, to J. Crocker, NMFS, forwarding Entergys edits to teleconference notes (Sept. 27, 2012) (ADAMS Accession No. ML12271A087); and (3) E-mail from B. Balsam, NRC, to J. Crocker, NMFS, forwarding Entergys responses to questions from conference call (Oct. 12, 2012) (ADAMS Accession No. ML12286A346).

32 See E-mail from D. Logan, NRC, to D. Gray, Entergy (Oct. 26, 2012), forwarding E-mail from J. Crocker, NMFS, to D. Logan, NRC (Oct. 26, 2012), transmitting draft Indian Point BiOp (Oct. 26, 2012)

(ADAMS Accession No. ML12300A408).

33 Letter from E. Zoli, Esq., to D. Wrona, NRC (Nov. 9, 2012), attached to E-mail from D. Gray, Entergy, to D. Logan, NRC (Nov. 9, 2012) (ADAMS Accession No. ML12347A085).

34 E-mail from D. Logan, NRC, to J. Crocker, NMFS (Nov. 9, 2012) (ADAMS Accession No. ML12314A415) (Attachment 12 hereto).

35 See Letter from D. Brancato, Esq., Riverkeeper, to J. Bullard, et al., NMFS (Nov. 23, 2012),

transmitted to NRC as attachment to E-mail from D. Brancato to C. Gallagher, NRC (Apr. 29, 2013) and letter from D. Brancato to Cindy Bladey, Chief, RADB (Apr. 29, 2013) (ADAMS Accession No.

ML13122A370).

36 See E-mail from J. Crocker, NMFS, to S. Turk, NRC (Nov. 26, 2012) (ADAMS Accession No. ML12333A045).

37 E-mail from D. Logan, NRC, to S. Turk, et al., NRC (Jan. 10, 2013), forwarding E-mail from D.

Gray, Entergy, to D. Logan, NRC, and J. Crocker, NMFS (Jan. 10, 2013) (ADAMS Accession No.

ML13010A217).

A-7

• On January 30, 2013, NMFS issued its final BiOp on the shortnose sturgeon and Atlantic sturgeon (superseding its BiOp of October 2011), including an Incidental Take Statement and identifying reasonable and prudent measures to be taken by the Applicant in accordance therewith. 39 Communications Subsequent to NMFSs Issuance of its Final BiOp

• On March 25, 2013, NYSDEC submitted comments to the Staff regarding NMFSs biological opinion. 40

• On April 26, 2013, Entergy wrote to NYSDEC, with copies to NMFS and the Staff, responding to comments that NYSDEC had submitted to NRC regarding NMFSs biological assessment. 41

• On April 27, 2013, as corrected April 29, 2013, the New York Attorney Generals office (NYAG) provided supplemental comments on the Staffs draft FSEIS Supplement. 42

• On April 29, 2013, Riverkeeper submitted additional comments to the Staff regarding the draft FSEIS Supplement and NMFSs final BiOp, to which it attached a copy of its letter to NMFS of November 23, 2012. 43 38 E-mail from D. Gray, Entergy, to D. Logan, NRC, and J. Crocker, NMFS (Jan. 10, 2013),attached to E-mail from D. Logan, NRC, to S. Turk, et al., NRC (Jan. 10, 2013) (ADAMS Accession No. ML13010A217).

39 Letter from J. Bullard, NMFS, to Dr. A. Hull, NRC (Jan. 30, 2013), transmitting Endangered Species Act Section 7 Consultation [BiOp]: Continued Operation of [IP2 and IP3], Pursuant to Existing and Proposed Renewed Operating Licenses, NER-2012-25252 (Jan. 30, 2013), attached to E-mail from J. Crocker, NMFS, to D. Logan, NRC (Jan. 30, 2013) (ADAMS Accession No. ML13032A256).

40 Letter from K. Moser, NYSDEC, to Dr. A. Hull, NRC (Mar. 25, 2013) (ADAMS Accession No. ML13094A132).

41 Letter from E. Zoli, Goodwin Proctor LLP, to K. Moser, NYSDEC (Apr. 26, 2013) (ADAMS Accession No. ML13120A006) (Attachment 13 hereto).

42 See (1) E-mail from J. Sipos, NYAG, to Cindy Bladey, et al., NRC (Apr. 27, 2013) (ADAMS Accession No. ML13119A199); (2) E-mail from J. Sipos, NYAG, to Cindy Bladey, et al., NRC (Apr. 29, 2013) (ADAMS Accession No. ML13120A075).

43 Letter from D. Brancato, Esq., Riverkeeper, to C. Bladey, NRC (Apr. 29, 2013), attached to E-mail from D. Brancato, Riverkeeper, to C. Gallagher, NRC( Apr. 29, 2013) (ADAMS Accession No. ML13122A370).

A-8

• On May 31, 2013, NMFS responded to NYSDECs comments of March 25, 2013, regarding NMFSs final BiOp. 44

• On June 20, 2013, the Staff published its final FSEIS Supplement, in which it, inter alia, responded to Riverkeepers, NYSDECs, and NYAGs comments of August 20, 2012, regarding the Staffs draft FSEIS Supplement. 45

• On July 3, 2013, the Staff responded to NYSDECs comments of March 25, 2013, concerning NMFSs final BiOp. 46

• On July 18, 2013, NMFS informed the Staff that it had reviewed the FSEIS Supplement and had no substantive comments with respect thereto. 47 44 Letter from J. Bullard, NMFS, to K. Moser, NYSDEC (May 31, 2013) (ADAMS Accession No. ML13155A475) (Attachment 14 hereto).

45 See FSEIS Supplement (ADAMS Accession No. ML13162A616), Appendix A, at A A-15 (Riverkeeper), A A-23 (NYSDEC), and A A-34 (NYAG) (Attachment 15 hereto).

46 Letter from M. Wong, NRC, to K. Moser, NYSDEC (July 3, 2013) (ADAMS Accession No. ML13123A275) (Attachment 16 hereto).

47 Letter from M. Colligan, NMFS, to J. Lubinski, NRC (July 18, 2013) (ADAMS Accession No. ML13200A094) (Attachment 17 hereto).