ML12144A191

Entergy'S Supplemental Response to Pilgrim Watch and Jones River Watershed Association'S Opposition to SECY-12-0062

ML12144A191
Person / Time
Site:	Pilgrim
Issue date:	05/23/2012
From:	Lewis D R Pillsbury, Winthrop, Shaw, Pittman, LLP, Entergy Nuclear Generation Co, Entergy Nuclear Operations
To:	NRC/OCM
SECY RAS
References
RAS 22494, 50-293-LR, ASLBP 06-848-02-LR
Download: ML12144A191 (97)

Text

May 23, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

In the Matter of )

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR )

(Pilgrim Nuclear Power Station) ) ENTERGY'S SUPPLEMENTAL RESPONSE TO PILGRIM WATCH AND JONES RIVER WATERSHED ASSOCIATION'S OPPOSITION TO SECY-12-0062 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively "Entergy") hereby request leave to file this supplemental response to the Pilgrim Watch and Jones River Watershed Association Joint Opposi tion to NRC Staff's Request for Authorization [to] Renew Pilgrim Station's License (SECY-12-0062, April 23, 2012) (Apr. 30, 2012) ("PW/JRWA Opp."), which Pilgrim Watch and the Jones River Watershed Association ("PW/JRWA") filed with the Commission on April 30, 2012. On May 14, 2012, Pilgrim Watch, now joined by JRWA, filed its eighth belated motion to reopen the record, 1 closed since June 2008 "on all matters save [the subseque ntly remanded portion of] Contention 3,"

2 by again seeking a hearing on a yet another new contention - the second such moti on filed since the NRC Staff requested authorization to issue the renewed license. Enter gy will respond to this latest motion within the scheduled timeframe, but respectfully responds now to Pilgrim Watch's

1 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 (May 14, 2012) ("Eighth Motion to Reopen").

2 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-03, 75 N.R.C. __, slip op. at 10 (Feb 2, 2012). The remanded issues were resolved in Entergy favor after further evidentiary hearing in 2011, and that decision has been affirmed on appeal. Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-11-18, 74 N.R.C. __, slip op. (July 19, 2011), aff'd, CLI-12-01, 75 N.R.C. __, slip op. (Feb. 9, 2012).

2 manufactured claims that Entergy "lacks ne cessary approvals that are prerequisites to relicensing" (Eighth Motion to Reopen at 4) and that the Commi ssion should "provide a hearing on this contention prior to relicensing" (id. at 43). PW/JRWA's eleventh hour allegations are nothing more than a transparent at tempt to delay issuance of the renewed license and, in addition to being utterly untimely, are utterly without merit. Likewise, Pilgrim Watch's and now JRWA's tactic of filing continual, successive motions to reopen the proceeding, all the while claiming that such motions preclude the Commission from authorizing issuance of the renewed license, must be recognized for what it is - a dilatory abuse of process. In the most recent motion to reopen, PW/JRWA challenge the sufficiency of variety of matters that were addressed in Entergy's January 2006 Environmental Report and the NRC's Staff's July 2007 final supplemental environmental impact statement

("FSEIS").

3 PW/JRWA do not make any meaningful attempt to base their contentions on previously unavailable information, but instead argue that "Entergy and the NRC are estopped from raising timeliness objections" because "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." Eighth Motion to Reopen at 31-32. While PW/JRWA refer to "NRC's wholesale failure to exercise due diligence with regard to Entergy's violations of state and federal law" (id.

at 21), their allegations in fact appear to challenge the regulation and decision-making of not only the NRC but also (1) National Marine Fisheries Service ("NMFS"); (2) the U.S. Fish and Wildlife Service ("FWS"); (3) the U.S. Environmental Protection Agency ("U.S. EPA"); (4) the Massachusetts Department of Environmental Pr otection ("MADEP"); and (5) the Massachusetts

3 NUREG-1427 Supp. 29, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 29 Regarding Pilgrim Nuclear Power Station (July 2007).

3 Office of Coastal Zone Management ("OCZM"). The suggestion that multiple federal and Commonwealth agencies have all failed to discharg e their statutory duties with respect to Pilgrim Station is neither cred ible nor substantiated.

Rather, and briefly with respect to each:

• PW/JRWA inaccurately allege that Pilgrim does not have a valid consistency determination under the Coastal Zone Management Act ("CZMA"). Eighth Motion to Reopen at 2. Pilgrim obtained a consistency determination from OCZM on July 11, 2006. See FSEIS at E-19. Further, on February 29, 2012, OCZM issued a letter confirming that its consistency determination remains valid. ADAMS Accession No. ML12081A015. Moreover, on May 21, 2012, OCZM rejected PW/JRWA claims that the consistency determination is invalid, and stated: "Specifically, we do not find that there are significant new circumstances or information regarding the proposed license activities or its consistency with Water Quality Policy #1 and Habitat Policies #1-2 and their underlying state authorities as they were in effect for [O]CZM's concurrence of the 2006 consistency certif ication." (Exhibit A).

• PW/JRWA inaccurately allege that Pilgrim does not have a State permit to operate its cooling water intake structure.

Eighth Motion to Reopen at 2. Pilgrim holds a permit last jointly issued by the U.S. EPA and MADEP on April 29, 1991 (as modified on August 30, 1994 and otherwise) authorizing discharges from the plant. ADAMS Accession No. ML061420166 ("Joint Discharge Permit"). That permit expressly and necessarily authorizes the current intake structure. Joint Discharge Permit, ¶ A.1.i ("It has been determined that the circulating water 4 intake structures presently employs the best technology available for minimizing adverse environmental impact."). Because Pilgrim timely applied for renewal of this discharge permit, the permit cont inues in effect. Entergy v. MDEP , 459 Mass. 319, 321 n.7 (2011).

• PW/JRWA inaccurately alleges that Pilgrim does not have a valid State 401 certification. Eighth Motion to Reopen at 2. There are multiple 401 certifications in place for Pilgrim. Entergy's Environmental Report ("ER") provided two such certifications, neither of which contains an expiration date. ER, Att. A.

4 In addition, the Joint Discharge Permit is supported by a 401 certific ation dated July 8, 1994, which certifies that the conditions in this current permit governing current discharge will achieve compliance with sections 208(e), 301, 302, 303, 306 and 307 of the Federal Clean Water Ac t and with the provisions of the Massachusetts Clean Water Act. (Exhibit D).

5 In its February 29, 2012 and May 21, 2012 letters confirming the continue d validity of the July 11, 2006 CZMA consistency determination obtained for Pilgrim license renewal (which includes the determination that discharges and withdrawals do not compromise water quality standards), OCZM confirmed its continued reliance on the Joint Discharge Permit and the supporting July 8, 1994 401 certification.

4 The April 15, 1971 certification obtained in connection with a permit for construction of the facility was replaced by a similar certification dated April 23, 1971 (Exhibit B). It was obtained to support an application to the U.S.

Army Corps of Engineers for a permit to work in or discharge to navigable waters, which covered the construction of the intake and discharge facilities. See Application dated June 30, 1971 (Exhibit C).

5 See also Entergy v. MDEP, 459 Mass. at 322-324 ("Massachusetts waters are protected from environmental degradation by a coordinated system of Federal and State control. The Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq. (2006) (Federal Act), seeks to prevent water pollution primarily by requiring facilities that discharge pollutants into surface waters of the United States to obtain Federal permits that limit the amount of pollutants that may be discharged. - Before a Federal permit may issue, the relevant State first must certify that the permittee's activities will not violate the State's water quality standards. Id. at §1341.") (footnote omitted).

5

• PW/JRWA inaccurately states that Entergy relied on April 15, 1971 and July 31, 1970 certifications to meet 10 C.F.R. § 51.53(c)(3)(ii)(B) to alle ge that Entergy's submissions to date are inadequate. Eighth Motion to Reopen at 7. PW/JRWA are doubly in error. This cited section of the NRC rules requires an ER to provide either current determinations under Sec tions 316(a) and (b) of the Clean Water Act, or an assessment of entrainment, impingement, and heat shock. Entergy did both, providing the Joint Discharge Permit and an assessment in the ER of potential aquatic impacts of Pilgrim station's cooling water system. Entergy did not rely on any 401 certifications to provide an assessment of these impacts. See ER, §§ 4.2 - 4.4. In any event, the NRC Staff performed an independent assessment of these impacts (FSEIS, §§ 4.1.1 - 4.1.3).

6 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 N.R.C. __, slip op. at 29-30 (Feb. 9, 2012) ("the ultimate issue in determining NEPA compliance is the adequacy of the Staff's environmental review, not the applicant's Environmental Report.").

• PW/JRWA inaccurately allege that Pilgrim is violating the Clean Water Act and State laws because it has been discharging the corrosion inhibitor Tolyltriazole.

Eighth Motion to Reopen at 3, 8. On June 30, 1995, the U.S. EPA approved the

use of Tolyltriazole in various Pilgrim systems, including discharge limits for planned releases. (Exhibit E) PW/JRWA al so inaccurately allege that Entergy is violating provisions in its NPDES permit requiring an annual biological

6 See, e.g., FSEIS at 4-27 ("To assess impingement impacts the staff independently reviewed the PNPS ER, visited the site, consulted with Federal and State resource agencies, reviewed the applicant's existing NPDES permit and existing literature related to fish and shellfish populations of Cape Cod Bay, and considered public comments.").

6 monitoring plan. Eighth Motion to Reope n at 9-10. Pilgrim has provided, on a yearly basis and via certified mail, plans for its yearly Biological Monitoring program to MADEP and to EPA as required by its permit.

7

• PW/JRWA inaccurately allege that Pilgrim does not have a state permit to discharge radioactive effluent. Eighth Motion to Reopen at 2, 8. First, the discharge of radioactive effluent is regulated excl usively by the NRC. Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1154 (8th Cir. 1971), aff'd

, 405 U.S. 1035 (1972). Second, the Joint Discharge Permit expressly acknowledges as much by allowing discharge of radioactive materials in accordance with NRC regulations and the NRC operating license for Pilgrim. Joint Discharge Permit at

¶ A.1.l.

• PW/JRWA inaccurately allege that Pilgrim is violating a State ban on killing river herring. Eighth Motion to Reopen at 3. Massachusetts' moratorium is a restriction placed only on recreational and commercial fishing and therefore has no applicability to Pilgrim.

8 Further, all credible scientific evidence in this proceeding establishes that continue d operation of PNPS would have no discernible effect on river herring.

9 7 See Attachment 2 to OCZM's May 21, 2012 letter (Exhibit A) at Appendix A, p. A-2.

8 The moratorium referenced by PW/JRWA, entitled "Taking and Possession of River Herring in Waters under the Jurisdiction of the Commonwealth," is enforced by the Massachusetts Department of Marine Fisheries ("MDMF"). See MDMF, Marine Fisheries Regulation Summaries as of July 2011, available at

http://www.mass.gov/dfwele/dmf/commercialfishing/reg_summary_062411.pdf (summarizes fishing regulations administered by MDMF). Importantly, and as PW/JRWA fail to mention, the specific statute that authorizes MDMF, M.G.L. c. 130 § 17A, allows MDMF to promulgate regulations governing fishing activities, not power plants. See M.G.L. c. 130 § 17A.

9 See, e.g., Entergy's Answer Opposing Jones River Watershed Association's and Pilgrim Watch's Motion to Reopen and Hearing Request (Mar. 19, 2012), Affidavit of Michael D. Scherer at ¶¶ 71-73, 82.

7

• Rehashing their sixth and seventh motions to reopen, PW/JRWA inaccurately allege that Endangered Species Act issues have not been resolved. Eighth Motion to Reopen at 3. The NRC prepared a biological assessment which concluded that Pilgrim license renewal would have no effect on endangered marine species.

FSEIS at E-51. Moreover, any claim that consultation with NMFS has not been closed out has been rendered moot by NMFS's letter dated May 17, 2012 (Exhibit F), in which NMFS concludes:

"based on information from NRC, Entergy, and other sources, all effects to listed species will be insignifican t or discountable.

Therefore, the continued operation of Pilgrim under the terms of a renewed operating license is not likely to adversely affect any listed species under NMFS jurisdiction." The NRC also consulted with the FWS with respect to terrestrial species. FWS communicated to the NRC th at "license renewal for PNPS is not likely to adversely affect federally-listed species subject to the jurisdiction of the [FWS], and that formal consultation with us is not required." FSEIS at E-9, E-

12.

• PW/JRWA inaccurately allege that consultation under the Magnuson-Stevens Fishery Conservation and Management Act has been improperly postponed.

Eighth Motion to Reopen at 16. NMFS concluded consultation with the NRC under this Act. FSEIS at E-45. In light of the clear untimeliness and clear lack of merit of the Eighth Motion to Reopen, the Commission should authorize the Staff to issue the renewed license as the Staff has requested. Any other course would not only reward PW/JRWA's t actic of delaying licensing by filing successive motions to reopen, but also violate the Commission's immediate effectiveness 8 rule.10 Further, although Pilgrim is en titled to continue to operate pa st its license expiration date of June 8, 2012 under the NRC's timely renewal rule at 10 C.F.R. § 2.109 and Section 9(c) of the Administrative Act, 5 U.S.C. § 558(c), it would be more efficacious for Pilgrim to enter the period of extended operation under the renewed license, which contains those terms and conditions that the Staff has determined to be appropriate for this period. While Entergy would endeavor in any event to implement the programs and fulfill the conditions intended for the period of extended operation, operating under the re newed license would pr ovide a clearer and more appropriate licensing basis, and is thus very much in the regulatory and public interest.

For all these reasons - and for the reasons set forth in SECY-12-0062, in Entergy's Motion for Issuance of the Renewed License (Aug. 23, 2011), and in the Entergy and the NRC Staff's prior answers to PW/JRWA's opposition to SECY-12-0062 - the Commission should authorize issuance of the renewed license. Respectfully Submitted, /signed electronically by David R. Lewis

/ ________________________________

David R. Lewis PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW

Washington, DC 20037-1128

Tel. (202) 663-8000 E-mail: david.lewis@pillsburylaw.com Counsel for Entergy

Dated: May 23, 2012

10 10 C.F.R. §§ 2.340 and 2.1210(d). See Applicant's Motion for Issuance of Renewed License (Aug. 23, 2011).

403487502v1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

In the Matter of )

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR )

(Pilgrim Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of Entergy's Supplemental Response to Pilgrim Watch and Jones River Watershed Association's Opposition to SECY-12-0062, dated May 23, 2012, was provided to the Electronic Information Exchange for service on the individuals below, this 23 rd of May, 2012. Secretary Att'n: Rulemakings and Adjudications Staff Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 hearingdocket@nrc.gov Office of Commission Appellate Adjudication Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 OCAAmail@nrc.gov Administrative Judge Ann Marshall Young, Esq., Chair Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Ann.Young@nrc.gov

Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Dr. Richard F. Cole Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Richard.Cole@nrc.gov Administrative Judge Dr. Paul B. Abramson Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Paul.Abramson@nrc.gov 2 403487502v1 Susan L. Uttal, Esq.

Maxwell C. Smith, Esq.

Joseph A. Lindell, Esq.

Office of the General Counsel Mail Stop O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Susan.Uttal@nrc.gov; Maxwell.Smith@nrc.gov; Joseph.Lindell@nrc.gov Matthew Brock, Assistant Attorney General Commonwealth of Massachusetts

Office of the Attorney General One Ashburton Place Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us

Ms. Mary Lampert 148 Washington Street Duxbury, MA 02332 mary.lampert@comcast.net Margaret Sheehan, Esq.

61 Grozier Road Cambridge, MA 02138 meg@ecolaw.biz Sheila Slocum Hollis, Esq.

Duane Morris LLP 505 9th Street, NW Suite 1000 Washington, DC 20006 sshollis@duanemorris.com Mr. Mark D. Sylvia Town Manager Town of Plymouth 11 Lincoln St.

Plymouth, MA 02360 msylvia@townhall.plymouth.ma.us

Chief Kevin M. Nord Fire Chief and Director, Duxbury Emergency Management Agency 688 Tremont Street P.O. Box 2824 Duxbury, MA 02331 nord@town.duxbury.ma.us

Richard R. MacDonald Town Manager 878 Tremont Street Duxbury, MA 02332 macdonald@town.duxbury.ma.us

/signed electronically by David R. Lewis

/ _____________________________

David R. Lewis

Exh A Cover Sheet.doc EXHIBIT A

1 *Jones River Watershed Association*Pilgrim Watch*

April 4, 2012 By Express Mail Bruce K. Carlisle Director Massachusetts Office of Coastal Zone Management 251 Causeway Street Suite 800 Boston MA 02114 Re: MCZM July 11, 2006 Consistency Certificat ion for Entergys Nuclear Pilgrim Nuclear Power Station, Plymouth MA

Dear Mr. Carlisle,

We are writing to request that your office immediately suspend its July 11, 2006 Coastal Zone Management Act (CZMA)

Consistency Certification for the Nuclear Regula tory Commission (NRC) relicensing of the Entergy Nuclear Generation Company and Entergy Nuclear Operations Inc. (Entergy)

Pilgrim Nuclear Power Station (PNPS).

Entergy has inaccurately certified to the NRC that relicensing will be consistent with the MCZM program. The facts show that continued operation of PNPS as proposed by Entergy will be inconsistent with enforceable state coastal zone management policies, as codified at 301 CMR 20.00 to 26.00 (MCZM program), and therefore the 2006 consistency deter mination is invalid.

Time is of the essence as Entergys current NRC operating permit expires June 8, 2012 and relicensing based on MCZMs 2006 consistency determination is likely to occur before May 29, 2012.

We further request that your office notify Entergy that a supplemental coordination is required for the relicensing application.

See, 10 C.F.R. 930.66 and CZMA, 16 U.S.C.S. 1451 et seq. Entergys NRC application states that during the relicensing period (2012 to 2032) it plans to continue its 40-year use of its once

-through cooling water system. It is documented that this system has had destructive impacts on Cape Cod Bay coastal zone resources and uses due to impingement, entrainment, thermal discharges, and discharges of other pollutan ts including chlorine and biocide residuals. Entergys 2006 Coastal Zone Management Consistency Certification (CZM Report) certified that operations during relicensing will be consistent with MCZM policies. Some of these statements were not true at the t ime they were made, and others are no longer true.

2 Entergys continued operation of the Pilgrim station for the relicensing period will violate at least MCZM Water Quality Policy #1, 301 CMR 21.98(3), and Habitat Policies, #1

-2, 301 CMR 21.98(4), in the following ways:

1 1. Noncompliance with its Clean Water Act NPDES permit: Since 1999, Entergy has failed to obtain state and federal approval of its Biological Monitoring plans, in violation of its NPDES permit, Part A.8, and has failed to conduct the B iological Monitoring it did do, under the oversight of the Pilgrim Advisory Technical Committee, in violation of Part 8.d.

2. Entergys NPDES permit expired in 1996, but has been administratively ex tended since that time. EPA and MassDEP do not have the capacity to issue a new NPDES permit before June 8, 2012, the NRC relicensing deadline

3. Entergys last 316 demonstration project was provided to U.S EPA in 1977, Additional information for a new review was submitted to EPA by ENSR in 2000 but the review was never completed. MCZM staff comments on the 2000 ENSR report forcefully stated that this submittal failed to demonstrate 316 and MCZM standards were met.

4. Since 2006, Entergy has annually violated the states moratorium on the taking of r iver herring, 322 CMR 6.17(3), and river herring is now a candidate species under the federal Endangered Species Act.

76 Fed. Reg. 67652 (11/2/2011)

River herring are the third most impinged species at PNPS. 5. Entergys CZM Report stated there would be no effects on endangered and threat ened species. On March 26, 2012 , the U.S. Fish and Wildlife Service informed the NRC Staff it does not agree that there will be no effects on Cape Cod Bay en dangered and threatened species from PNPS operations.

6. M CZMs 2006 certification fails to address or acknowledge impacts to marine mammals such as whales, porpoise, and dolphin, which are known to be present in the PNPS area and in Cape Cod Bay, and which are protected by the federal Marine Mammal Protection Ac t, 16 U.S.C.S. 1362 (13), 1372 (a).

7. Impacts to species listed under the Massachusetts Endangered Species Act were ignored or inadequately assessed, including impacts to hawksbill turtle, humpback whale, roseate tern, and arctic tern.

8. New disch arges of radioactive tritium to groundwater at the Pilgrim station are being documented, and this groundwater is reported to flow toward Cape Cod Bay. It is unknown for how long this discharge has been occurring. MCZM has not determined whether discharges of this radioactive material, combined with PNPS point source discharges of radioactive wastewater to Cape Cod Bay, is consistent with MCZM policies.

1 This is not a comprehensive list of all the way s in which continued operations will violate MCZM policies, but only examples. More information is available upon request.

3 9. An Essential Fish Habitat consultation with NMFS as required by Magnuson-Stevens Fishery Conservation and Management Act has not been completed and will not be done prior to June 8, 2012, the relicensing deadline. Instead, the NRC has postponed the EFH consultation indefinitely to the NPDES permit renewal process. Therefore the MCZMs consistency review w as done without the benefit of the results of this consul tation. 10. Entergy has not demonstrated compliance with MassDEPs 2006 cooling water intake structure water quality standards, upheld by the Massachusetts Supreme Judicial Court in April 2011, fol lowing a legal challenge by Entergy.

Entergy Nuclear Generation Company v. Department of Environmental Protection , 459 Mass. 319 (2011).

These regulations are designed, inter alia , to minimize impacts on aquatic life through entrainment, impingement and t hermal discharge. See, 314 CMR 4.05(b)(2)(d), 4.05(3)(c)(2)(d), 4.05(4)(a)(2)(d), 4.05(4)(b)(2)(d), 4.05(4)(c)(2)(d).

Entergy should have provided all of the information listed above to MCZM, pursuant to 16 U.S.C.S. 1456(c)(3)(A), which requires an a pplicant to submit all material relevant to a States management programÉ.

15 CFR 930.58; 301 CMR 21.07(3).

See, e.g.

Conservation Law Foundation v.

Lujan 560 F.Supp. 561 (D.Mass.

1983). Under 15 C.F.R. 930.66(a), applicants for federal consistenc y review shall further coordinate with the State agency and prepare a supplemental consistency certification if the proposed activity will affect any coast use or resource substantially different than originally described. Significant new circumstances o r information and substantial changes both warrant such supplemental review.

Id. 930.66(a)(1)

-(3). The information we have indicated above shows a supplemental coordination is required.

Facts, documents, and data establishing this information were obt ained from agency files.

About two weeks ago we requested a meeting with your staff to discuss this, and we remain willing to do so, in order to reach a mutually agreeable resolution of the concerns raised here. We are ready and able to provide you with full documentation of these facts and others that show that NRC relicensing of PNPS will violate MCZM policies.

In the meantime, we reiterate our request that you immediate ly suspend the 2006 Consistency Certification and so notify the NRC, and inform Ente rgy that supplemental coordination is needed under 15 C.F.R. 930.66.

Thank you for consideration of our information. Please contact Pine duBois, Executive Director, Jones River Watershed Association, 781

-585-2322 or pine@jonesriver.org should you have any questions or concerns.

4 Very truly yours, Jones River Watershed Association, Inc.

By: Pine duBois, Executive Director Margaret E. Sheehan, Esq., Volunteer Anne Bingham, Esq.

Cc: Representati ve Edward Markey The Hon. Duval Patrick, Governor Senator Therese Murray Provincetown Center for Coastal Studies James McCaffrey, Director, Sierra Club, Massachusetts Susan M. Reid, Conservation Law Foundation Cur t Spaulding, Regional Administrator, USEPA Region 1 David Webster, US EPA Kenneth Kimmel, Commissioner, MassDEP Beth Card, MassDEP State Senators and Representatives Whale and Dolphin Conservation Society Pilgrim Coalition Herring Alliance Cape Cod Hook Fishermans Association Trout Unlimited, Massachusetts Chapter Massachusetts Rivers Alliance Cape Cod Commission

Exh B Cover Sheet.doc EXHIBIT B

Exh C Cover Sheet.doc EXHIBIT C

Exh D Cover Sheet.doc EXHIBIT D

Exh E Cover Sheet.doc EXHIBIT E

Exh F Cover Sheet.doc EXHIBIT F

UNITED NUCLEAR REGULATORY WASHINGTON , D.C. 20555-0001 May 22,2012 OFACE OF THE GENERAL COUNSEL Administrative Judge Administrative Judge Ann Marshall Young, Chair Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop T-3F23 Mail Stop T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Administrative Judge Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 In the Matter Entergy Nuclear Generation Company Entergy Nuclear Operations, (Pilgrim Nuclear Power Docket No. 50-293-LR; ASLBP No.

Dear Administrative Judges: This letter is an update to the NRC staff's April 19, 2012 response to the Board's Inquiry (Regarding Information on Expected NMFS ESA Determination), dated April 18, 2012, requesting that the NRC staff (Staff) provide a copy of the Endangered Species Act (ESA) informal consultation from the National Marine Fisheries Service (NMFS), if received, or , in the alternative, an estimate of the anticipated date of receipt. Please find attached hereto a copy of the ESA informal consultation letter dated May 17, 2012 from the NMFS. The NMFS acknowledged that the continued operation of Pilgrim under the terms of a renewed operating license is not likely to adversely affect any listed species under NMFS jurisdiction.

The NMFS letter further provided justification concluding consultation. By copy of this letter , I am serving a copy of the NMFS letter dated May 17, 2012 on the service list. Sin/7 I j?(tttj Counsel for NRC Staff ENCLOSURE:

As stated UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE NORTHEAST REGION 55 Great Republic Drive Gloucester, MA 01930-2276 MAY 1 7 2012 Andrew S. Imboden, Chief Environmental Review and Guidance Update Branch Division of License Renewal Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission MS T-ll Fl Washington, DC 20555-0001 Re: Pilgrim Nuclear Power Station

Dear Mr. Imboden,

The Nuclear Regulatory Commission (NRC) is proposing to issue a renewed Operating License to Entergy Corp. for their Pilgrim Nuclear Power Station (Pilgrim).

Pilgrim is located on the western shore of Cape Cod Bay in the Town of Plymouth, Plymouth County, Massachusetts.

The NRC prepared a Biological Assessment (B.{\) in 2006 which evaluates the effects of the proposed license renewal on whales and sea turtles listed as threatened or endangered by NOAA's National Marine Fisheries Service (NMFS). In 2012, in response to the listing of five Distinct Population Segments (DPS) of Atlantic sturgeon, you prepared a supplemental BA to consider effects of operations on Atlantic sturgeon.

You have also considered effects to these species in your 2006 Draft Supplemental Environmental Impact Statement (SEIS) and your 2007 final SEIS. A conference call was held on March 22, 2012, to discuss the status ofthe consultation because we had significant confusion regarding NRC's determination of effects. In the species by species discussion in the 2006 BA, NRC concludes that the continued operation o:(Pilgrim would have no effect on each of the ten species considered; the conclusion of the BA states, "staff has identified ten l Federally listed endangered or threatened species that are under full or partial NMFS jurisdiction, that have a reasonable potential to occur in the vicinity of PNPS, and, therefore, may be affected by continuing operations ofPNPS... the staff has determined that continued operation of PNPS for an additional 20 years would not have any adverse impact on any threatened or endangered marine aquatic species" (NRC 2006 and NRC 2007 at E-73). The FSEIS states, "staff concludes that continued operation of PNPS during the license renewal term is not likely to adversely affect any Federally listed marine aquatic species" (NRC 2007 at p. 4-64). Your February 29,2012, letter transmitting the supplemental BA and the supplemental BA itself state that you have determined the continued operation of Pilgrim will' have no effect on Atlantic sturgeon. , 1 In the FEIS and 2006 BA, NRC considered loggerhead, green, leatherback and Kemp's ridley sea turtles and sei, fin, North Atlantic right, humpback and sperm whales and shortnose sturgeon.

On the March 22,2012 conference call, your staff confirmed that NRC believes the continued operation of Pilgrim will have "no effect" on any NMFS listed species. As discussed with your\ staff on a March 22, 2012 conference call, we do not agree with your "no effect" determination.

As we also discussed, informal consultation would be appropriate in this situation.

Consultation is required when an action "may affect" listed species and/or critical habitat. Consultation may be concluded informally if the action "may affect, but is not likely to adversely affect" listed species and/or critical habitat. A "not likely to adversely affect" conclusion is appropriate when effects are wholly beneficial, insignificant or discountable.

As explained in the joint U.S. Fish and Wildlife and NMFS Section 7 Handbook, "beneficial effects are contemporaneous positive effects without any adverse effects. Insignificant effects relate to the size ofthe impact and should never reach the scale where take occurs. Discountable effects are those extremely unlikely to occur. Based on best judgment, a person would not: (1) be able to meaningfully measure, detect, or evaluate insignificant effects; or (2) expect discountable effects to occur." We have reviewed the available information and do agree that the continued operation of Pilgrim may affect, but is not likely to adversely affect any species listed as threatened or endangered by NMFS. We have also considered whether the continued operation of Pilgrim may affect critical habitat designated for the Northern right whale in 1994 (herein after,'right whale critical habitat).

In this letter, we provide our justification for concluding consultation informally.

Description of the Facility and Proposed Action You are proposing to issue a renewed Operating License for the Pilgrim facility.

The plant was constructed and licensed in 1972, and the current license expires on June 8, 2012. The facility is currently owned and operated by the Entergy Corporation.

The renewed license would authorize the continued operation of the facility until June 8, 2032. There would be no major construction, refurbishment or replacement activities associated with the license renewal. If the NRC approves the license renewal application, the reactor and support facilities would be expected to continue to operate and be maintained until the renewed license expires in 2032. The Pilgrim facility operates a single reactor unit with a boiling water reactor and turbine generator.

The cooling and service water systems operate as a once-through cooling system, with Cape Cod Bay being the water source. Seawater is withdrawn-from the Bay through an intake embayment formed by two breakwaters.

Two pumps provide a continuous supply of condenser cooling water. In 1972, Congress assigned authority to administer the Clean Water Act (CWA) to 'the U.S. Environmental Protection Agency (EPA). EPA issues National Pollutant Discharge'Elimination System (NPDES) permits for facilities in Massachusetts.

Section 316(b} of the CW A requires that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available (BTA) for minimizing adverse environmental impacts (33 USC 1326). EP A regulates impingement and entrainment under Section 316(b) of the CW A through the NPDES permit process. The EPA administers Section 316(b) in Massachusetts through the NPDES program. 2 Pilgrim cannot operate without the intake and discharge of cooling watet. NRC is responsible for authorizing the operation of nuc'ear facilities, as well as approving any extension of an initial operating license through the license renewal process. Intake and discharge of water through the cooling water system would not occur but for the operation of the facility pursuant to a renewed license; therefore, the effects of the cooling water system on listed species and any designated critical habitat are effects of the proposed action.. Pursuant to NRC's regulations, operating licenses are conditioned upon compliance with all applicable law, including but not limited to CWA Section 401 Certifications and NPDES permits. Therefore, the effects of the proposed Federal action--the continued operation of Pilgrim as proposed to be approved by NRC, which necessarily involves the removal and discharge of water from the Atlantic Ocean--are shaped not only by the terms of the renewed operating license but also by the NPDES permit issued. In this consultation we consider the effects of the operation of Pilgrim pursuant to the extended Operating License to be issued by the NRC and the NPDES permit issued by EPA that is already in effect; this is the scenario contemplated in the FSEIS. The NPDES permit for this facility was last issued in 1991 and modified in 1994. This permit expired in 1996 and has been administratively extended each year. We requested information from EPA Region 1 regarding the expected publication date for a revised draft permit and were told that no schedule, is currently available.

Based on this, we do not anticipate that a revised NPDES permit will be available prior to the expiration of the existing operating license. As such, we have considered the effects of continued operation of Pilgrim under the terms of a new operating license and the existing modified 1991 NPDES . permit (EPA 1991 and EPA 1994). NMFS Listed Species in the Action Area The action area is defined as "all areas to be affected directly or indirectly by the Federal action* and not merely the immediate area involved in the action" (50CFR§402.02).

The Pilgrim facility is located on land and includes two land based transmission lines. The effects analysis presented below will be limited to effects experienced in the aquatic environment.

Effects of this action on listed species include impingement and entrainment of potential prey and effects to habitat, including the discharge of heated effluent.

Therefore, the action area for this consultation includes the intake area and the region within Cape Cod Bay where effects of the thermal plume are experienced.

Based on the available information, the largest area measured with increased water temperatures was a surface area of216 acres with a temperature of 3°C above ambient; however, models predict that the maximum surface area (extending no deeper than five feet from the surface) with a temperature of 1°C above ambient can encompass an area as large as 3,000 acres (this 3,000 acre area extends approximately 7,000 feet (approximately 1.3 miles) from the discharge canal). At the bottom, the largest area that is likely to experience increased temperatures is 8.4 acres.

As we explain below, all directand indirect effects to listed species are limited to the area where increased water temperatures are experienced; thus, the action area is also limited to this area. Individual North right whales (Eubalaena glacialis) occur in Cape Cod Bay nearly year round; however, the vast majority of sightings occur from January -April (Pace and Merrick 2008). The species population size was estimated to be at least 361 individuals in 2005 based 3 on a census of individual whales identified using photo-identification techniques (Waring et al.. 2010). The population trend for right whales is increasing; the mean growth rate for the population from 1990-2005 was 2.1 % (Waring et al.. 2010). Of the 17,257 right whale sightings in New England during 1970 through 2005,7,498 were in Cape Cod Bay (Pace and Merrick 2008). Right whales are most common in eastern Cape Cod Bay, although individuals have been sighted throughout the Bay. Sightings from May 1997 to the present have been mapped (see http://www.nefsc.noaa.gov/psb/surveys/SASInteractive2.html.

Since 1997, there have been three sightings in Cape Cod Bay in June; two sightings of three whales in July, none in August, one in September, one in October, three in November (likely the same individual sighted on three consecutive days in 2011), and four in December.

Ofthe thousands of recorded sightings of hundreds of individual right whales in Cape Cod Bay since 1997, we have identified six sightings records (five definite, one probable) of 12 right whales within approximately two miles of the Pilgrim facility.

Four of the six sightings were in April (2008, 2010 and 2012), one was in May and one was in December.

The seasonal presence of right whales in Cape Cod Bay is thought to be closely associated to the seasonal presence of dense patches of their preferred copepod prey (primarily Calanus finmarchus but also Pseudocalanus spp. and Centropages spp.; Pace and Merrick 2008) Humpback whales (Megaptera novaeangliae) feed during the spring, summer, and fall over a range that encompasses the eastern coast of the United States. Humpback whales in this area belong to the Gulf of Maine stock. The humpback whale population is thought to be steadily increasing and numbers over 11,000 individuals (Waring et al.. 2010). While small numbers of humpback whales may be present in Massachusetts waters year round, sightings are most frequent from mid-March through November between 41 ON and 43°N, from the Great South Channel north along the outside of Cape Cod to Stellwagen Bank and Jeffreys Ledge (CETAP 1982) and peak in May and August (Waring et al.. '2010). Humpback whales are known to occur in Cape Cod Bay and could be present in the action area. We have reviewed sightings data plotted in the OBIS-SEAMAP 2 database.

The majority of humpback whale sightings are in eastern Cape Cod Bay. Of21,472 records of36,268 individual sightings of humpback whales recorded in this database, only two are within five miles of Pilgrim. Fin whales (Balaenoptera physalus) are also known to be present in Cape Cod Bay and could occur in the action area. The best abundance estimate available for the western North Atlantic fin whale stock is 3,985 (CV=0.24) (Waring et al.. 2010). We have reviewed sightings data plotted in the OBIS-SEAMAP database.

Of 51 ,942 records of 61,874 individual sightings, there are only six records of 16 individual fin whales within five miles of Pilgrim. There are no sightings recorded in the database closer than 3 miles from the facility.

NRC's BA and EIS also discuss sei and sperm whales. Sei (Balaenoptera borealis) whales occur in deep water throughout their range, typically over the continental slope or in basins situated between banks (NMFS 2011). Sperm whales (Physter macrocephalus) occur on the 2 Ocean Biogeographic Information System Spatial Ecological Analysis of Megavertebrate Populations is a spatially referenced oriline database aggregating marine mammal, seabird and sea turtle observation data from across the globe. The maps illustrate sightings from 432 databases.

Available at: www.seamap.env.duke.edu (last accessed May 10, 2012). 4 continental shelf edge, over the continental slope, and into mid-ocean regions. Sightings of sei whales in Cape Cod Bay are extremely rare. Of 9, 172 sightings of sei whales recorded in SEAMAP database, only three are records of sei whales in Cape Cod Bay; all three sightings were on the extreme eastern edge of the Bay near Provincetown.

These sightings were in 1967 and 1976. Based on the extremely rare occurrence of sei whales and their known habitats (the continental shelf and other offshore waters), we do not expect sei whales to occur in the action area. Of the 23,929 sightings of sperm in the OBIS-SEAMAP database, none were in Cape Cod Bay. Based on the lack of known occurrences of sperm whales in Cape Cod Bay and their known habitats (continental shelf edge, over the continental slope, and into mid-ocean regions ), we do not expect sperm whales to occur in the action area. Certain New England waters were designated as critical habitat for Northern right whales 3 in 1994 (59 FR 28793). The Great South Channel critical habitat is the area bounded by 41 °40' N/69°45' W; 41 °00' N/69°05' W; 41 °38' W; and 42°10' N/68°31' W. The Cape Cod Bay critical habitat is the area bounded by 42°02.8' N170010' W; 42°12' N170015' W; 42°12' N170030' W; 41 °46.8' N170030' Wand on the south and east by the interior.

shore line of Cape Cod, Massachusetts.

The maximum distance that the thermal plume extends from the discharge canal is approximately 1.5 miles from the area in Cape Cod Bay designated as critical habitat. Sea turtles are seasonally present in Cape Cod Bay. The species that occur in Cape Cod Bay and are likely to occur in the action area include the threatened Northwest Atlantic Distinct Population Segment (DPS) ofloggerhead (Caretta caretta) sea turtles as well as endangered Kemp's ridley (Lepidochelys kempi) sea turtles, endangered leatherback sea turtles (Dermochelys coriacea) and endangered green sea turtles (Chelonia mydas). There are no estimates of the numbers of sea turtles that are present seasonally in Cape Cod Bay generally or the action area specifically.

Few researchers have reported on the density of sea turtles in Northeastern waters; however, this information is available from one source (Shoop and Kenney 1992). Shoop and Kenney (1992) used information from the University of Rhode Island's Cetacean and Turtle Assessment Program (CET AP 4) as well as other available sightings information to estimate seasonal abundances of loggerhead and leatherback sea turtles in northeastern waters. As illustrated in Figure 3 of the Shoop and Kenney paper, the aerial and shipboard surveys covered Cape Cod Bay, including the portion of the Bay we have defined as the action area. The authors calculated overall ranges of abundance estimates for the summer of 7,000-10,000 loggerheads and 300-600 leatherbacks present in the study area from Nova Scotia to Cape Hatteras.

Using the available sightings data (2841 loggerheads, 128 leatherbacks and 491 unidentified sea 3 In 2008, NMFS listed the endangered northern right whale (Eubalaena spp.) as two separate, endangered species: the North Pacific right whale (E. japonica) and North Atlantic right whale (E. glacialis)(73 FR J 2024). We received a petition to revise the 1994 critical habitat designation in October 2009. In an October 2010 Federal Register notice, we announced that we intend to revise existing critical habitat by continuing our ongoing rulemaking process to designate critical habitat for North Atlantic right whales with the expectation that a proposed critical habitat rule for the North Atlantic right whale will be published in 2011. To date, we have not published a proposed rule so the 1994 critical habitat designation for northern right whales is the only critical habitat for right whales in the Atlantic.

4 The CET AP survey consisted of three years of aerial and shipboard surveys conducted between 1978 and 1982 and provided the first comprehensive assessment of the sea turtle population between Nova Scotia, Canada and Cape Hatteras, North Carolina.

5 turtles), the authors calculated density estimates forJoggerhead and leatherback sea turtles (reported as number of turtles per square kilometer).

These calculations resulted in density estimates of 0.00164 -0.510 loggerheads per square kilometer and 0.00209 -0.0216 leatherbacks per square kilometer.

It is important to note, however, that this estimate assumes that sea turtles are evenly distributed throughout the waters off the northeast, even though Shoop and Kenney report several concentration areas where loggerhead or leatherback abundance is much higher than in other areas. Further, despite high observation effort in Cape Cod Bay in the spring, summer and fall, no sea turtles were observed in Cape Cod Bay. Additionally, the report only considered the presence of leatherback and loggerhead sea turtles. The Shoop and Kenney abundance estimates, despite considering only the presence of loggerhead and leatherback sea turtles, likely overestimates the number of sea turtles present in the action area. This is due to the assumption that sea turtle abundance will be even throughout the Nova Scotia to Cape Hatteras study area. However, sea turtles occur in high concentrations in several areas outside of the action area, and the inclusion of these concentration areas in the density estimate likely overestimates the number of sea turtles in the action area. Therefore, we expect even lower abundance and density of sea turtles in the action area than the coast wide estimates provided in Shoop and Kenney (1992). The maximum size of the area warmed by the thermal plume is 3,000 acres (approximately 12 square kilometers), using the density estimates of Shoop and Kenney (1992), we would expect no more than 6 leatherback sea turtles and no more than 1 loggerhead sea turtle to be present in the action area at a given time during the summer. Because Kemp's ridleys and greens are less common than leatherbacks and loggerheads in Massachusetts, we would expect fewer individuals of these species to be present in the action area. For reference, there are approximately 60,000 adult loggerheads in the NW A DPS, with an additional unknown number of juveniles and subadults; the most recent population size estimate for the North Atlantic alone is 34,000-94,000 adult leatherbacks (TEWG 2007); current population estimates for Kemp's ridleys are approximately 7-8,000 adult females with additional unknown numbers of males and younger age classes (NMFS and USFWS 2007); for green sea turtles there are an estimated 17,402-37,290 nesting females per year (NMFS and USFWS 2007b) with additional males and younger age classes. Sightings data indicate that leatherback sea turtles are the most common species of sea turtle in Massachusetts waters, including Cape Cod Bay, followed by loggerheads, with fewer Kemp's ridley and green sea turtles. Sea turtles are typically present in Massachusetts waters from June through October; however, cold stunned turtles may continue to strand on Massachusetts beaches through January. Sea turtles in the action area are likely to be foraging or migrating.

On February 6, 2012, we published two rules listing five DPSs of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) under the ESA. The effective date of these listing rules was April 6, 2012. The marine range of all five DPSs extends along the Atlantic coast from Canada to Cape Canaveral, Florida.. Atlantic sturgeon originating from any of five DPSs could occur in Cape Cod Bay and may be present in the action area. Atlantic sturgeon originating from the New York Bight, Chesapeake Bay, South Atlantic and Carolina DPSs are listed as endangered.

Atlantic sturgeon originating from the Gulf of Maine DPS are listed as threatened.

Atlantic sturgeon spawn in their natal river and remain in the river until approximately age two and at 6 lengths of approximately 76-92 cm (30-36 inches; ASSRT 2007). After emigration from the natal estuary, subadult and adult Atlantic sturgeon forage within the marine environment, typically in waters less than 50 m in depth, using bays, sounds, and ocean waters (see ASSRT 2007). The nearest rivers to Pilgrim where Atlantic sturgeon are known to spawn are the Kennebec River (Maine) and the Hudson River (New York). Because of the distance from the nearest known spawning grounds and the intolerance of early life stages and juveniles to saline waters, no eggs, larvae or juvenile Atlantic sturgeon are likely to occur in the action area. Only sub-adult or adult Atlantic sturgeon would be present in the action area. Atlantic sturgeon in the action area are likely to be migrating and could also be foraging opportunistically.

We do not have any estimates of the number of Atlantic sturgeon present in Cape Cod Bay generally or the action area specifically.

Entergy has reported the capture oftwo Atlantic sturgeon (1982 and 2009 5) in surveys associated with assessing impacts of Pilgrim on the environment.

The capture of Atlantic sturgeon in trawl surveys carried out by the Massachusetts Division of Marine Fisheries in Cape Cod Bay is rare, with only one capture recorded to date. Similarly, few Atlantic sturgeon have been reported as bycatch in commercial fisheries operating in Cape Cod Bay (Stein et at.. 2004). NRC also considers shortnose sturgeon (Acipenser brevirostrum) in their BA and FSEIS. However, shortnose sturgeon are not known to occur in the action area. Shortnose sturgeon are present in certain large rivers along the U.S. Atlantic coast. The nearest rivers to Pilgrim that are known to contain short nose sturgeon is the Merrimack River (MA) and Connecticut River (CT/MA). While in the GulfofMaine, shortnose sturgeon have been documented to make nearshore coastal migrations between neighboring rivers (i.e., the Kennebec and Penobscot Rivers, both in Maine), this behavior is not known to occur outside of this region. No shortnose.

sturgeon have been documented in Cape Cod Bay and we do not expect this species to be present in the action area. Therefore, this species will not be considered further in this consultation.

EFFECTS OF THE ACTION Below, we consider the effects of the continued operation of Pilgrim under the terms of a new operating license on listed species and critical habitat..

We consider the effects of water withdrawal (impingement or entrainment of listed species and their prey) and effects of the discharge of effluent (exposure to pollutants, including heat, and effects on prey). In addition to considering infonnation presented in the 2006 DSEIS and the 2007 FSEIS, we have considered information presented in NRC's Generic EIS for relicensing, the most recent impingement and .entrainment reports (Normandeau 2011a and 2011b) for Pilgrim, and other sources of information on listed species and their prey as cited below. Entrainment of Listed Entrainment occurs when small aquatic life forms are carried into and through the system during water withdrawals.

Entrainment primarily affects organisms with swimming ability that can pass through the screen mesh, used on the intake 5 One fish measuring 82.8 cm (2.7 feet) was caught in a gill net operated by the Mass. Division of Marine in November 1982. A second fish measuring 180 cm (5.9 feet) was caught in a bottom trawl survey conducted Normandeau Associates in May 2009 (Scherer Entrainment sampling was initiated in 1974 and was initially conducted twice per month from January to February and from October to December and conducted weekly from March through September.

During these events, sampling was conducted in triplicate.

Beginning in 1994, during the January to February and October to December time periods, samples have been collected every other week on three separate days for a total of approximately six samples per month. During the March through September time frame, three separate samples have been collected every week for a total of approximately 12 samples per month (NRC 2007). A rack system is in place in front of the intakes to screen out large debris; this consists of vertical bars spaced 3-inches apart. There is also a by !;h-inch mesh traveling screen system (NRC 2007). To be entrained in the facility, an organism must be able to pass through this mesh. All whales, sea turtles, and Atlantic sturgeon are considerably larger than this minimum size, making entrainment impossible.

Because of this, no entrainment of listed species will occur during the period of continued operations.

Impingement of Listed Species Impingement occurs when organisms are trapped against cooling water intake screens or racks by the force of moving water. Impingement happens when aquatic species cannot escape from the screen or rack and become stuck. Impingement sampling has been ongoing since 1980 arid consists of monitoring three scheduled screen-wash periods each week throughout the year. Monitoring occurs for 30 to 60 minutes at a time (NRC 2007). Atlantic sturgeon Fish that are narrower than 3-inches may pass through the trash bars and become impinged on the traveling screens. Fish with body widths larger than 3-inches could become impinged on the trash racks. Information on length-width relationships for sturgeon indicates that sturgeon longer than 85cm would be excluded from a 4-inch opening (UMaine, unpublished data). While we do not have information on the body lengths that would have widths sufficiently large to prevent passage through a 3-inch opening, because fish get wider as they get longer, we expect that the length of fish that could possibly pass through a 3-inch opening would be smaller than 85 em. Atlantic sturgeon do not leave their natal rivers until they are approximately 76 cm (ASSRT 2007); thus, the only fish susceptible to impingement on the traveling screens would be those that are 76 -85 cm long, which would be a sub adult given that they mature at approximately 150cm (ASSRT 2007). Atlantic sturgeon attain lengths of approximately 200cm (Colette and Klein-MacPhee 2002). Regardless of fish size, impingement only occurs when a fish cannot swim fast enough to escape the intake (e.g., the fish's swimming ability is overtaken by the velocity of water being sucked into the intake). Intake velocities at Pilgrim's racks are approximately 1.0 feet per second (fps) or less, depending on tide and operations; through-screen velocities on the travelipg screen are no higher than 2.0 feet per second (NRC 2007). In order for impingement to happen, a fish must be overcome by the intake or through-screen velocity.

Juvenile and adult shortnose sturgeon (body lengths greater than 58.tcm) have been demonstrated to avoid impingement and entrainment at intakes with velocities as high as 3.0 feet per second (Kynard et ai.. 2005); Assuming that Atlantic sturgeon have swimming capabilities at least equal to shortnose sturgeon, 8 Atlantic sturgeon should also be able to avoid becoming impinged on the trash bars and intake screens. This is a reasonable assumption given that the Atlantic sturgeon that would be present in the action area are at least of a similar size to the shortnose sturgeon tested by Kynard and because these species have similar body forms, we expect swimming ability to be comparable between individuals of similar sizes. No Atlantic sturgeon have been documented as impinged at Pilgrim. As a condition of their existing license, Entergy must report to NRC any observations of listed species. No whales or sea turtles have been observed impinged at the Pilgrim intakes (NRC 2007). We have considered whether there is the potential for future impingement at Pilgrim. All whales and sea turtles that may be present in the action area are too large to pass through the trash bars (i.e., they have body widths much larger than 3-inches).

Whales in the action area are expected to be at least 13 feet long (the minimum size of newborn calves, which is the smallest size of these whale species anywhere; NMFS OPR 2012), with body widths of several feet. Whales are too large to pass through the trash racks and become impinged on the traveling screens. Whales are capable of swimming speeds of several miles per hour; the low intake velocity at the trash rack.(1.0-foot per second; NRC 2007) makes it extremely unlikely that any whales would be impinged at the intakes. We are not aware of any incidences of whales .becoming impinged on cooling water intakes anYwhere in the u.s. The impingement of sea turtles has been documented at some (e.g., Oyster Creek, NJ; St. Lucie, FL), but not all, nuclear power on the u.s. East Coast. As noted above, no sea turtles have been recorded at the Pilgrim intakes. No sea turtle impingements have been recorded at any other power plant with a cooling water intake in New England, including the Seabrook O"JH) and Millstone (CT) nuclear power plants. Factors related to the potential for impingement likely include intake velocity (animals may have more difficulty escaping areas with intake velocity), plant location, and the physical features of the intake structure (for example, sea turtle impirigement at the Salem, NJ nuclear facility was nearly eliminated after ice barriers were seasonally removed from the intakes 2010)). Sea.turtles are strong swimmers and are likely to be able to avoid impingement at the Pilgrim intakes; the lack of any impingement in the past supports this conclusion.

Based on this analysis, the impingement or entrainment of any whales, sea turtles, or Atlantic sturgeon is extremely unlikely to occur during the extended operating period.. This conclusion is supported by past monitoring data as reported in the BA, DEIS and FEIS; no Atlantic sturgeon, whales or sea turtles have been observed as impinged or entrained at the intakes. Impingement and Entrainment

-Effects on Prey NRC reports in the FEIS that 73 species of fish and 18 taxa of invertebrates have been recorded during impingement sampling since 1980 (NRC 2007). NRC also reports that losses due to impingement from Pilgrim were less than one percent of the population for each of the recorded impinged species, with the exception of cunner and rainbow smelt. Below, we consider the effects of the loss of potential prey species due to impingement or entrainment at Pilgrim for whales, sea turtles and Atlantic sturgeon that may be foraging in the action area and in Cape Cod .Bay. 9 Right whales Right whales feed almost exclusively on copepods, a type of zooplankton.

Of the different kinds of copepods, North Atlantic right whales feed especially on late stage Calanus finmarchicus, a large calanoid copepod (Baumgartner et al.. 2007), as well as Pseudocalanus spp. and Centropages spp. (Pace and Merrick 2008). Because a right whale's mass is ten or eleven orders of magnitude larger than that of its prey (late stage C. finmarchicus is approximately the size of a small grain of rice), right whales are very specialized and restricted in their habitat requirements

-they must locate and exploit feeding areas where copepods are concentrated into high-density patches (Pace and Merrick 2008). Right whales forage in Cape Cod Bay from January -April; this area is known to have high densities of copepods during this time of year (Pace and Merrick 2008). Because of their small size, copepods would be entrained at Pilgrim rather than impinged against the intake screens. Some entrained copepods are likely to die as they travel through the plant due to thermal stress and exposure to chlorine.

Entergy reports that studies conducted in 1984 indicate that mortality of entrained zooplankton is approximately 5% during most operating conditions, with an additional loss of 8.3% of entrained zooplankton that are exposed to chlorine.

Thus, more than 85% of entrained zooplankton are likely to survive entrainment (Bridges and Anderson 1984). A study on the effect of Pilgrim's operations on zooplankton was undertaken in the 1970s, after Pilgrim began operating.

In a study conducted from August 1973 through December 1975, duplicate samples were taken monthly at mid-depth near the Pilgrim intake and discharge and at various depths at offshore stations.

Copepods, especially Acartia clausi and Acartia tonsa, dominated the samples. Pseudocalanus minutus occurred in moderate abundances* (approximately 1,000 individuals/m3) every month. Reports indicate that statistical evaluation of the mean densities ofthe copepod species observed did not reveal any differences between sampling stations (ENSR 2000). NRC has indicated that, other than the studies cited above, no information on the entrainment of zooplankton generally or copepods specifically is available for Pilgrim. No estimates ofthe number of copepods entrained are available.

NRC indicates that the issue of zooplankton entrainment has been considered generically.

As stated in the GElS (see section 4.2.2.1.1 in NRC 1996), because of large numbers and short regeneration times of phytoplankton and zooplankton (most copepods live from one week to several months), impacts of entrainment on these organisms have rarely been documented outside the immediate vicinity of any plant and are considered to be oflittle consequence (referencing Schubel and Marcy 1978; Hesse et al.. 1982; Kennish et al.. 1984; MDNR 1988; MRC 1989; EPRI EA-l038).

NRC states that the effects of entrainment at nuclear plants are not expected to cause or contribute to cumulative impacts to populations of zooplankton or phytoplankton.

NRC also states that the effects of phytoplankton and zooplankton entrainment are localized (i.e., the affected areas are smaller than the distances between power plants) and are not expected to contribute to cumulative impacts because generation times of plankton are rapid. NRC further states that review of the literature and operational monitoring reports did not reveal evidence of cumulative impacts from entrainment of phytoplankton and zooplankton.

Based on this analysis, NRC has concluded that any effects to zooplankton, including copepods, would be small and localized. "Small" effects are defined by NRC as, "environmental effects [that are] not detectable or are so minor that they will neither destabilize pr noticeably alter any important attribute of the resource" (see NRC 2007 at p. iii). . Because we do not have information on the number of copepods entrained at Pilgrim that we can compare to the volume of copepods in Cape Cod Bay, which would give us information on the relative loss of copepods, we have considered other information on zooplankton and copepods in Cape Cod Bay. We expect that if the continued operation of Pilgrim was having an effect on the zooplankton community in Cape Cod Bay, that there would be a negative trend in zooplankton and copepod abundance in the Bay since Pilgrim became operational.

However, as explained below, long term studies of zooplankton and copepods in Cape Cod Bay have not found any negative trend in copepod abundance.

The zooplankton community in Cape Cod Bay has been monitored by the Massachusetts Water Resources Authority (MWRA) since 1992, both near the MWRA outfall and at farfield stations, including stations in Cape Cod Bay. As most recently reported in 2010, there have been no changes.in the zooplankton community at any of the stations beyond normal ecological fluctuations (Werme et at.. 2011). The abundance of the three primary copepod that light whales feed on is variable in Cape Cod Bay, both monthly and annually (Stamieszkin et at.. 2010); a review of data on copepods collected in Cape Cod Bay from 2003-2010 compiled by Starnieskin et at.. (2010) reveals no trends of enrichment or decline for any of the three taxa studied (Catanus, Pseudocalanus and Centropages).

Together, these studies support NRC's detennination that continuedoperations of Pilgrim have not destabilized or-negatively impacted the zooplankton community in Cape <::od Bay. We have conducted a literature search to determine ifthere is any infonnation on the effects of other'nuclear power plants with once through cooling systems on zooplankton, including copepods.

A peer reviewed paper was found which documented an 8-year study of zooplankton entrainment at a nuclear facility on Lake Michigan (Evans et at.. 1986). The authors concluded that the studies showed a small percentage of entrained zooplankton were actually killed as a result of passage through thecondenser cooling system and that these small losses were not able to be detected at the lake. However, this study occurred in a fresh water system with different species of zooplankton (and different species of copepods) and operations of the Lake Michigan power plant and Pilgrim may be different.

The Bridges and Anderson (1984) study at Pilgrim on zooplankton mortality does reach similar conclusions regarding zooplankton mortality resulting from entrainment.

Studies presented by Huggett and Cook (1991) consider effects of entrainment of zooplankton at a nuclear power facility on the coast of South Africa. While there are right whales off the coast of South Africa, this study did not consider effects to right whales or other species that feed on copepods.

Mortality rates for entrained copepods were approximately 22%; however, the copepods discussed were not the species that right whales in Cape Cod Bay forage on. The 11 authors concluded that plankton entrainment at the Koeberg facility was not considered to be "particularly detrimental to the marine environment" mainly because of the localized area . affected (no more than 1 kIn from the mouth ofthe outfall canal), the rapid dispersion of heat and chlorine, the rapid regeneration times of phytoplankton and some zooplankton, and the potential for recruitment from the surrounding area. Extensive pre-and post-operation monitoring has occurred at the Seabrook Nuclear Power Station in New Hampshire.

Seabrook withdraws approximately 600 million gallons of water per day (MOD; NRC 2011) (Pilgrim withdraws amaximum of510 MOD). As reported in the DEIS prepared by NRC for relicensing of Seabrook, NextEra compared the density ofholoplankton, meroplankton, and hyperbenthos taxa prior to and during operation at nearfield and farfield sites (3-8 miles away from the intakes and discharge and considered to be outside the influence of the facility).

No significant difference in the density ofholoplankton (copepods are considered holoplankton) or meroplankton taxa prior to and during operations or between the nearfield and farfield sampling sites were reported.

These results suggest that Seabrook operations have not noticeably altered* holoplankton or meroplankton density near Seabrook in the more than 20 years that Seabrook has been operating.

The available information indicates that most (greater than 85%) entrained zooplankton will survive entrainment at Pilgrim. We expect that some of the zooplankton that are killed will be copepods and that some of those copepods.may be of the three types that are preferred by right whales. However, studies conducted at Pilgrim, and at other nuclear power plants, indicate that any losses of copepods are not detectable outside of natural variability.

Further, information gathered from severallongterm monitoring programs designed to document changes in the zooplankton community in Cape Cod Bay, does not indicate that there have been any reductions in copepod abundance in the Bay. If Pilgrim was having more than an insignificant effect on copepod populations within the Bay, we expect that these studies would have detected a negative trend over time. While there may be significant annual variability in copepod abudance and associated right whale foraging in the Bay, which is thought to be due at least party to weather and oceanic conditions (e.g., differences in 2010 as compared to other years are thought to be due to the changes in the Western Maine Coastal Current (Stamieszkin et at.. 2010), the available information does not suggest that there has been a long-term negative trend in copepod abundance or distribution or right whale abundance or distribution since the Pilgrim facility became operational that may be attributable to operations of the facility.

While some copepods are likely lost to entrainment at Pilgrim each year and these losses, if they were the right species and occurred at a time of year when right whales were present, would reduce the amount of prey available to right whales, however these reductions will be insignificant and undetectable from natural variability.

As such, we expect any effects to foraging right whales to be insignificant.

Humpback and fin whales .Humpback and fin whales feed on krill and small schooling fish, primarily Atlantic herring 6mackerel and sand lance. Other species that humpbacks are reported to forage on while in North Atlantic include capelin, pollock, and haddock. Capelin (Mallotus villosus) are recorded as being impinged or entrained at Pilgrim (NRC 2007 and Normandeau 20lla Atlantic mackerel (Scoinber scombrus) have been occasionally impinged at Pilgrim. From 2010, mackerel have been impinged in seven years with a mean annual impingement of individuals.

As described in the 2010 entrainment report (Normandeau 2011a),

mackerel "equivalent adults" attributable to entrainment in 2010 amounted to 316 age-one fish 114 age-three fish based on two sets of survival values. The northwest Atlantic spawning stock biomass was 96,968 metric tons in 2008 with average recruitment of 566 age-one fish from 1985-2009 (TRAC 2010). While the annual loss of Atlantic mackerel Pilgrim over the 20-year operating period will result in fewer fish that are available for whales to eat, this loss represents an extremely small percentage of the Atlantic herring to these species. Because of this, any effects to foraging whales will be Atlantic herring (Clupea harengus) have been impinged and entrained at Pilgrim. The number of Atlantic herring impinged at Pilgrim (1990-2004) is 2,069 individuals per year. most recent (Normandeau 2011 a) report for entrainment at Pilgrim indicates that the adult value of Atlantic herring entrained or impinged at Pilgrim would account for about percent of the spawning stock by biomass. Atlantic herring are a prolific, widely species; the most recent stock assessment report (TRAC 2009) indicates that this species fully recovered from past overfishing.

At the beginning of 2008, the biomass was 652,000 metric tons; the 2005 year class was approximately 3.3 billion individuals.

While loss of Atlantic herring at Pilgrim results in fewer fish that are available for large whales to this loss represents an extremely small percentage ofthe Atlantic herring available to species. Because of this, any effects to foraging whales will be Sand lance are a common, widely distributed species. American sand lance americanus) is impinged in only some years and at very low numbers (Normandeau 2011 Larval sand lance are entrained seasonally at Pilgrim (Normandeau 2011 a); the long term mean number entrained is 3,854 (Normandeau 2011a). Collette and Klein-MacPhee report that the abundance of sand lance in the western North Atlanticin 1987 was 500,000 metric tons. While the loss of sand lance at Pilgrim results in fewer fish that available for large whales to eat, this loss represents an extremely small percentage of the lance available to these species. Because of this, any effects to foraging whales will 6 It is important to distinguish between Atlantic herring and the species commonly to as "river herring" because there are often references made to "herring" without further specificity about which species is being referred to. Atlantic herring are a marine species that occurs exclusively in saline waters; these small schooling fish are preyed upon by large whales. The tenn river herring refers to alewife and blueback herring which are small anadromous fish that spawn in rivers and then make oceanic migrations.

13 Humpback whales may feed occasionally on pollock and haddock. Entergy reports the impingement ofa total of 15 haddock (all in 2007) from 1980-2010 (Normandeau 2011b). Haddock eggs and larVae are also occasionally entrained at Pilgrim. The annual entrainment estimate for haddock eggs and larvae at Pilgrim ranges between 0 and 89,926 eggs and 0 and 178,892 larvae (ENSR 2000). Entergy reports that haddock eggs were only observed once between 1989 and 1998 and haddock larvae were only observed in four of these 10 years. Considering that an average female haddock lays 850,000 eggs (Brodziak and Traver 2006), and B_ank

<?r:i2(f;()OO-metric-tons, __ "_" (NMFS 2003), the loss of eggs and larvae at Pilgrim represents 1m extremely small percentage of 'thehaddockavailableto-

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....>.>_*. __C.._.: .... ,__.,. J Entergy reports the impingement of an average of 65 pollock annually from 1980-2010.

The average number of estimated pollock eggs and larvae entrained annually at Pilgrim between 1989 and 1998 is 26,044 and 47,364 respectively (ENSR 2000). Pollock eggs were only observed twice between 1989 and 1998 and pollock larvae were only observed four of the 10 years (ENSR 2000). Estimates of pollock abundance were 196,000 metric tons in 2009. The loss of pollock at Pilgrim represents an extremely small percentage of the sand lance available to these species. Because of this, any effects to foraging whales will be insignificant.

Other small schooling fish that are impinged or entrained at Pilgrim include alewives and river herring. Fin and humpback whales are not known to prey on either of these species (see NMFS 1991 and NMFS 2010 for descriptions of the diet of humpback and fin whales). Green sea turtles Green sea turtles feed primarily on sea grasses and may also feed on algae. Sea grasses are immobile and rooted in the substrate; they can only be impinged at the intakes if they have become uprooted due to some other cause, such as a storm. The continued operation of Pilgrim does not cause the loss of any seagrasses due to impingement or entrainment.

Green sea turtles are not known to feed on Irish moss (K. Sampson 7 , personal communication), the red seaweed that has been identified as being impinged and entrained (spores) at Pilgrim. As the species that green sea turtles forage on are not affected by impingement or entrainment, we do not anticipate any loss of green sea turtle forage items due to impingement or entrainment.

Loggerhead and Kemp's ridley sea turtles Loggerhead turtles feed on benthic invertebrates such as gastropods, mollusks and crustaceans.

Kemp's ridleys primarily feed on crabs, with a preference for portunid crabs including blue crabs. Pilgrim impinged a mean of273 cancer crabs (Cancer spp.) per year from 1980 through 2010 based on extrapolated annual totals (Normandeau 2011 b). However, annual impingement rates have varied widely. Pilgrim impinged cancer"crabs in only two years from 1980 to 1999, but from 2000 to 2010, Pilgrim impinged cancer crabs nine out ofthe 10 years (Normandeau 2011 b). There is similar variability in the number of other invertebrates, including other crab species, impinged at Pilgrim each year, with no individuals impinged in many years but some years having multiple individuals impinged.

In some years, several thousand individual invertebrates, including crabs, are impinged (Normandeau 2011b). However, all of these species 7 Personal communication, April 2012 with Kate Sampson, NMFS NERO Sea Turtle Stranding Coordinator.

14 ate widely distributed with populations of at least millions of individuals and any loss due to impingement at Pilgrim represents an extremely small percentage of the individuals in the actioq. area and in Cape Cod Bay or throughout their range. While the loss of benthic invertebrates, including crabs, at Pilgrim results in fewer individuals that are available for sea turtles to eat, this loss is expected to be an extremely small percentage of the forage available to these species. Because of this, any effects to foraging sea turtles will be insignificant.

Leatherback sea turtles Leatherback sea turtles feed exclusively on jellyfish.

The most recent impingement report for Pilgrim (Normandeau 20 11 b) indicates that Pilgrim impinged 744 jellyfish (Phylum Cnidaria) in 1981 and 940 jellyfish in 1983 based on extrapolated totals. However, no jellyfish have appeared in impingement samples since 1983. Because the impingement of jellyfish is rare, and the numbers of jellyfish impinged in the past is low in relation to overall population levels, we expect that in the 20 years of continued operations, there will be the occasional impingement of low numbers of jellyfish.

Any jellyfish lost at Pilgrim represent a reduction in available prey for leatherbacks foraging in Cape Cod Bay; however, because the loss will be limited to occasional instances and only a small number of individuals, which equates to a miniscule percentage of the overall number of jellyfish available to leatherbacks, the effect on foraging leatherbacks will be insignificant.

Atlantic sturgeon Atlantic sturgeon feed on benthic invertebrates and occasionally on sand lance. Effectsto sand lance are considered above; because the loss of sand lance at Pilgrim is an extremely small percentage of the biomass of sand lance, effects to foraging Atlantic sturgeon from this loss are will be insignificant.

NRC states that monitoring of the benthic environment near Pilgrim indicates that effects related to Pilgrim can only be detected in a very small area (less than 1 acre; NRC 2007). Any benthic invertebrates lost at Pilgrim results in fewer individuals that are available for Atlantic sturgeon to eat; however, given the small area where the benthic community is affected (less than 1 acre), any effects to foraging Atlantic sturgeon would be insignificant.

Discharge of heated effluent Description of the thermal plume Heated effluent is discharged from the Pilgrim outfaIIs.

Under normal operation, seawater is heated in the condensers to approximately 15 to 17°C above the intake temperature (which ranges annually from 2 to 22°C). The temperature of the discharged water is a function of the temperature of the incoming seawater.

From the condensers, water flows through a buried* concrete conveyance to the discharge canal. Upon exiting the concrete pipe, discharged water enters a 900-foot-Iong trapezoidal discharge canal. The NRC has indicated that this thermal plume is rapidly dissipated and is only present in the nearshore area around the facility.

The NPDES pemiit limits the temperature of cooling water discharged from the facility to be no more than 32°F (l7:8°C) above ambient, with a maximum limit of 102°F (56:7°C).

Studies of the thermal plume occurred in the 1970s and again in the 1990s. Two of the most detailed thermal investigations at PNPS were a 1974 study by the Massachusetts Institute of Technology (MIT 15 1974), which focused on characterizing the plume based on surface water temperature measurements, and a 1994 study by EG&G (1995), which focused on bottom water temperature measurements to characterize the benthic thermal plume and validate mathematical models to predict bottom plume characteristics (ENSR 2000). At low tide, the turbulent discharge plume is well mixed vertically as it leaves the canal, due in part to the significant downward momentum of the discharge as it spills from .the mouth of the discharge canal. The plume remains in contact with the bottom at low tide for up to several hundred meters offshore.

At the surface, the plume spreads by mixing with the ambient water. At the bottom the core temperature of the plume drops and its width narrows with distance offshore.

As a result, elevated temperatures are present at low tide over a limited area of the bottom near the discharge canal (see detailed discussion below; EG&G 1995). At high tide, the discharge has a much lower velocity and no downward momentum.

As a result, the thermal discharge plume rises away from the bottom almost immediately upon leaving the discharge canal (EG&G 1995). The 1974 study found that the thermal plume is largest during high tide, and that during high tide the plume is essentially confined to the surface layer. The depth of the was found to be relatively shallow, with depths ranging from 3 to 8 feet at high tide. The temperature difference (delta T) between ambient water and the thermal plume was found to cover a larger area when ambient temperatures were higher. Por example, water with a delta T of 3°C (5.4°P) covered approximately 216 acres in August when the ambient temperature was 17.0°C (62.6°P), but only 14 acres in November when the ambient temperature was 8.5°C (47.3°P).

The maximum recorded size of the plume was a 216 acre area that had temperatures 3°C (5.4°P) above ambient from the surface to 4 feet below the surface. The study demonstrated that the size of the plume was influenced by ambient temperatures.

In November, when ambient water temperatures were 8.5°C (47.3°P), the largest measured extent of the plume (delta T of 1°C (1.8°P)) was only 56 acres. In July, when the ambient temperature was 11.5°C (52.7°P), the largest measured extent of the plume (delta T of 1°C (1.8°P)) was 138 acres. In all instances, the plume was limited to the area between the surface and 3-8 feet below the surface. The area of the plume was found to decrease rapidly with increasing depth, due to the buoyancy of the plume. Throughout the tidal cycle, the smallest surface areas with elevated temperatures occurred between low water slack tide and peak flood tide, and the largest areas occurred between high water slack tide and peak ebb tide (ENSR 2000 in NRC 2007). Model results suggest that, during worst case conditions, the area where water temperatures will be at least 1°C above ambient could be as large as 3,000 acres. Visual depictions of the area encompassed by this area are not available.

However, the delta T 3°e area was illustrated (see MIT 1974). Using this figure and the maximum distance between the 4°C and 3°C isopleths, the 3,000 acre area occupied by the delta T 1°C is predicted to extend approximately 7,000 feet (approximately 1.4 miles) from the discharge canal. Por reference, measured from the shoreline at Pilgrim, it is approximately 18.5 miles to the tip of Cape Cod and approximately 18 miles to the southern extent of Cape Cod Bay. The 1994 study (EG&G 1995) measured the bottom temperature patterns based on time series measurements at 59 locations in the immediate vicinity of the discharge.

The maximum offshore extent of the benthic thermal plume at low tide, based on the area of 1°C temperature elevation, did not exceed 170 meters (558 feet) from the mouth of the discharge canal, and its width did not exceed 40 meters (131 feet) at a distance of 80 m (262 ft) offshore.

The maximum bottom area 16 covered by the 1°C temperature elevation at low tide was about 1.2 acres; the maximum temperature elevation recorded (increase of 9°C (l6.2°F))

was limited to an area ofless than 0.13 acres at the bottom. During high tide, there was no discernible temperature increase at any location, even within 50 m of the mouth of the discharge canal. Because the benthic thermal plume study involved measurements taken over a short period of time and the temperatures and extent of the plume were strongly affected by ambient temperatures, the report (EG&G 1995 references in NRC 2007) also considered the potential for more extreme thermal plume characteristics under worst case conditions.

It concluded that extreme bottom temperatures and plume areas could result from a prolonged period of unusually warm weather, spring tide conditions in which the lowest water level can be nearly 1 m (3 feet) below mean water level (ML W), and conditions favorable for downwelling could be produced by warm winds from the north or northeast in summer. The combination of these conditions potentially could result in peak discharge temperatures in excess of 38°C (lOO.4°F).

Given the uncertainty in the area it was estimated that these conditions potentially could result in the thermal plume contacting the bottom over an area about four to seven times the area measured in the study. Using this information, during extreme conditions, the maximum offshore extent of the benthic thermal plume at low tide, based on the area of 1°C temperature elevation, would not exceed 680-1,190 meters from the mouth of the discharge canal, and its width would not exceed 160-280 meters at a distance of 80 meters offshore.

The maximum bottom area covered by the 1°C temperature elevation at low tide, would be 4.8-8.4 acres; the maximum bottom area covered by the 9°C temperature elevation would be 0.52-0.91acres at the bottom. An additional source of heated water discharge at PNPS is backwashing operations; this is used to control biofouling in the condenser tubes. Condenser tubes at Pilgrim are cleaned by backwashing on a one to two week interval, depending on the degree ofbiofouling; the flow of heated water is reversed so that organisms fouling the condenser tubes and intake structure are . killed by the elevated temperatures.*

The process results in the flow of heated water out of the intake structure and into the intake embayment.

The thermal backwashing process generally occurs for approximately 45 to 60 minutes and produces elevated water temperatures averaging approximately 37.8°C (lOO°F) (NRC 2007). A thermal survey to determine the effects of backwashing operations at Pilgrim found thatbackwashing results in a relatively thin thermal .plume, averaging 3 to 5 feet in depth (water depths in the area are at least 18-24 feet at mean low water), that spreads rapidly from the intake structure across the western end of the intake embayment and along the outer breakwater.

The plume completely dissipates within 2-4 hours (Normandeau 1977). Effects of the Thermal Plume Whales Right whales have been recorded at sea surface temperatures (SST) of 0.0-21.8°C (Kenney in Kraus and Rolland 2007); humpback whales at SST up t032°C (NMFS 1991) and fin whales at SST up to 28°C (NMFS 2010). All three whale species show tolerance for changing temperatures as reflected by movements through varied water temperatures over periods of minutes to weeks (Kenney in Kraus and Rolland 2007). Heated areas are discussed below in 17 tenns of acres. For reference, the surface area of Cape Cod Bay is approximately 321,237 acres (1,300 square kilometers; Emberton 1981). While small numbers of right whales (e.g., less than 3 at a time) can be present in Cape Cod Bay year round, right whales are typically present in the Bay from January -April (Pace and Merrick 2008). During this time of year, mean sea surface temperatures in Cape Cod Bay range from approximately O-lOOC (see Delorenzo Costa et al.. 2006). Assuming that right whales may be negatively affected at water temperatures above 21.8°C (the maximum temperature where they have been recorded), to consider direct effects to right whales from the thennal plume (i.e., stress that may cause injury or mortality or avoidance behavior), we would consider the area where water could be heated to above 21.8°C. During the January -May time period, water would need to be heated at least 11.8°C above ambient to reach this level. .The discharge temperature of the effluent is 15-17°C above ambient so even in the winter, water would be discharged at levels potentially above the thennal tolerance of right whales. However, outside of extreme summer conditions, the bottom area where temperatures are greater than 9°C above ambient are less than 0.13 acre (EG&G 1995). Thus, the bottom area that we would expect right whales to avoid would be less than 0.13 acres. We have infonnation on the size of the thennal plume at the surface when ambient temperatures were 8.5°C and 11.5°C. These conditions are similar to those when whales are present in Cape Cod Bay and are most likely to be present in the action area. As noted above, avoidance by right whales could occur at temperatures of 21.8°C. With ambient temperatures ofless than lOoC, right whales are only likely to avoid surface areas with water temperatures wanned at least 11.8°C above ambient. When ambient temperatures were 8.5°C and 11.5°C, the surface area . where water temperatures were greater than 7°C and 6°C respectively were 0.1 and 0.5 acres; the areas where water temperature would be 21.8°C or higher would be even smaller. Based on this, the area where water temperatures are potentially high enough for right whales to avoid during the January -May time period are less than 0.13 acres at the bottom and less than 0.5 acres at the surface. As stated previously, most right whale sightings in Cape Cod Bay occurred in the eastern portion of the Bay. With regard to the relatively small subset of right whales in Cape Cod Bay that travel to the western part of the Bay, we expect that right whales would avoid waters heated to above 21.8°C by swimming under or around them. Because the area of the plume that would be avoided is extremely small (less than 0.5 acre, or less than 0.0002% of the . surface area of Cape Cod Bay), any avoidance will not result in any disruption or delay in any essential behaviors that these species may be carrying out in the action area, including foraging, migrating or resting. Additionally, there is not expected to be any increase in energy expenditure that has any detectable effect on the physiology of any individuals or any future effect on growth, reproduction, or general health. Fin and humpback whales could be present in the action area year round but are more likely to be in the action area during the summer months. During the wannest months, ambient temperatures can be as high as 22°C. Given the known distribution of fin and humpback whales in waters of 28 and 32°C respectively, water would need tobe heated to at least 6 and lOOC above ambient to be potentially stressful to these species. As evidenced in the discussion for right whales above, 18 during the winter months, this area is extremely small (less than 0.13 acre at the bottom and less than 0.5 acre at the surface).

At conditions of ambient temperature 17°C, the area where temperatures are more than 6°C above ambient (23°C and higher) was measured at 2.6 acres (ENSR 2000). No measurements were made at ambient temperatures over 17°C. However, we also know the size of the area where delta T was 6°C at 11.5°C; in this case, a 50% increase in ambient temperature (11.5°C to 17°C) results in approximately a five-fold increase in the size of the area with a delta T 6°C (0.5 acres to 2.6 acres). Assuming that this relationship is linear, we calculate that the size of the delta T 6°C would be 4.33 times bigger when ambient temperatures are 22°C (i.e., a 1.3 times increase in ambient temperature would result in an approximately increase in the size of the delta T 6°C area). Thus, we expect the area where surface temperatures would be higher than 28°C to be approximately 11.25 acres (2.6x4.33);

the area with surface temperatures of 32°C would be even smaller. Based on this analysis, the surface area where water temperatures would be potentially stressful to humpback and fin whales (i.e., greater than 32°C and 28°C respectively), would be smaller than 11.25 acres (approximately 0.004% ofthe surface area of Cape Cod Bay). As discussed in EG&G (1995), during most of the year, the benthic area where water temperatures are more than 9°C above ambient is less than 0.1 acres and the area where water* temperatures are more than 1°C above ambient is less than 1 acre. Throughout most of the year, the benthic area that fin and humpback whales would avoid is no more than 1 acre. During certain extreme conditions, the area where water temperature is heated above ambient by 9°C can be as large as 0.91 acres and the area where water temperature is heated above ambient by 1°C can be 8.4 acres. The size of the thermal plume as measured at the delta T 1°C, 5°C, and 9°C isopleths, changes by at least one-third (see Table 5.1-3 in ENSR 2000; e.g., the area at the bottom that is 5°C is approximately 1/3 the size of the area that is 1°C). Thus, we expect that even in the worst case summer conditions, the benthic area that would be avoided by humpback and fin whales would be approximately 3 acres (1/3 the size of the delta T 1°C). Given that the size of the surface and bottom areas that fin and humpback whales are likely to avoid (no more than 11.25 acres at the surface and 3 acres at the bottom) is small, and avoidance behavior is expected to be limited to swimming around or under the plume, any avoidance will not result in any disruption or delay in any essential behaviors that these species may be carrying out in the action area, including foraging, migrating or resting. Additionally, there is not expected to be any increase in energy expenditure that has any detectable effect on the physiology of any individuals or any future effect on growth, reproduction, or general health. Sea turtles Excessive*heat exposure (hyperthermia) is a stress to sea turtles but is a rare phenomenon when sea turtles are in the ocean (Milton and Lutz 2003). As such, limited information is available on the impacts of hyperthermia on sea turtles. All sea turtle species are known to regularly occur in waters of at least 28°C; Caribbean waters can be even warmer in the low to mid 30s. Environmental temperatures above 40°C can result in stress for green sea turtles (Spotila et al.. 1997). Even assuming that a water temperature greater than 28°C could be stressful for sea 19 turtles, as explained above, even when ambient temperatures are there wannest, the surface area heated to 28°C or higher is approximately 11.25 acres; the benthic area is even smaller (less than 3 acres (see above for calculations)).

Sea turtles could avoid the heated area of the bottom by swimming around it and could avoid the surface area by swimming underneath it. Given the small size of this area, any avoidance will not result in any disruption or delay in any essential behaviors that these species may be carrying out in the action area, including foraging, migrating or resting. Additionally, there is not expected to be any increase in energy expenditure that has any detectable effect on the physiology of any individuals or any future effect on growth, reproduction, or general health. We have considered whether the thennal effluent discharged from the plant may represent an attraction for turtles. If turtles are attracted by this thennal plume, they could remain there late enough in the fall to become cold-stunned.

Cold stunning occurs when water temperatures drop quickly and turtles become incapacitated.

The turtles lose their ability to swim and dive, lose control of buoyancy, and float to the surface (Spotila et al.. 1997). If sea turtles are attracted to the heated discharge or remain in surrounding waters heated by the discharge and move outside of this plume into cooler waters (approximately less than 8-1 O°C), they could become cold stunned. While no one has studied the distribution of sea turtles in Cape Cod Bay to detennine . whether the thennal effluent associated with Pilgrim affects sea turtle distribution; existing data from other nuclear power plants in the NMFS Northeast Region do not support the concern that. warm water discharge may keep sea turtles in the area until surrounding waters are too cold for their safe departure.

For example, extensive data is available on sea turtles at the Oyster Creek facility in.New Jersey (OCNGS; NMFS NERO 2011). We expect cold-stunning to occur around mid-November in New Jersey waters. No incidental captures of sea turtles have been reported at the OCNGS later than October 30, with the minimum recorded temperature at time of capture of 11.7°C (this turtle was alive and healthy, not cold stunned), suggesting that the thennal effluent is not increasing the risk of cold stunning.

There are several factors that may make it unlikely that the thennal effluent from Pilgrim increases the risk of cold-stunning of sea turtles. During the winter, when water temperatures are low enough for cold stunning to occur, the area where the water temperatures would be suitable for sea turtles is transient, small and localized.

In order to stay in the action area once ambient waters cool in the Fall, sea turtles would need to find areas where temperatures higher than at least 11°C would consistently be found. While there is wann water discharged from Pilgrim year round and there are nearly always areas where water is heated to above 11°C, the amount of water that is at this temperature is highly variable and because of tidal influences on the distribution of the thennal plume in the water column (i.e., at low tide, the plume is only at the bottom), there would never be a period longer than 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> where wann enough water would be present throughout the water column. When ambient water temperatures are 8.5°C, the area warmed to over 11°C is less than 14 acres (approximately 0.004% of the surface area of Cape Cod Bay) and extends only 4 feet from the surface (see Table 5.1-1 in ENSR 2000); because sea turtles are benthic feeders and must dive down away from the surface to eat, being restricted to surface waters would preclude long tenn use ofthis area. Given the transient nature of the thennal plume, its presence at the surface, and the small size of the area that would have temperatures that would support sea turtles, it is extremely unlikely that sea turtles would seek out and use the thermal plume for refuge from falling temperatures in the Bay. Because of this, it is extremely unlikely that sea turtles would remain unseasonably long in the action area because of the presence of heated water from Pilgrim. Based on the best available information, it is extremely unlikely that the discharge of heated effluent increases the vulnerability of sea turtles in the action area to cold stunning.

Atlantic sturgeon Limited information on the tHermal tolerances of Atlantic sturgeon is available.

Atlantic sturgeon have been observed in water temperatures above 30 0 e in the south (see Damon-Randall et al.. 201 0). In the laboratory, juvenile Atlantic sturgeon showed negative behavioral and bioenergetics responses (related to food consumption and metabolism) after prolonged exposure to temperatures greater than 28°e (82.4°P) (Niklitschek 2001). Tolerance to temperatures is thought to increase with age and body size (Ziegweid et al.. 2008 and Jenkins et al.. 1993), however, no information on the lethal thermal maximum or stressful temperatures for sub adult or adult Atlantic sturgeon is available.

Shortnose sturgeon, which are likely to be a reasonable surrogate for Atlantic sturgeon given similar geographic distribution and known biological similarities, have been documented in the lab to experience mortality at temperatures of 33.7°e (92.66°P) or greater. We first consider the potential for Atlantic sturgeon to be exposed to temperatures which are expected to result in behavioral avoidance (28°e). Atlantic sturgeon could be in the action area year round. The maximum ambient temperature is expected to be 22°e. As explained above, even when ambient temperatures are there warmest, the surface area that Atlantic sturgeon are likely to avoid (28°e) is less than 11.25 acres. The benthic area is even smaller (less than 3 acres). Atlantic sturgeon exposure to the surface area where water temperature may be elevated above 28°e is limited by their normal behavior as benthic-oriented fish, which results in limited occurrence near the water surface. Any surfacing Atlantic sturgeon are likely to avoid near surface waters with temperatures greater than 28°e. Reactions to this elevated temperature are expected to consist of swimming away from the plume by traveling deeper in the water column or swimming around the plume. As the area that would be avoided is at or near the surface, away from bottom waters where shortnose sturgeon spend the majority of time and complete all essential life functions that are carried out in the action area (foraging, migrating, resting), and given the small area that may have temperatures elevated above 28°C it is extremely unlikely that these minor changes in behavior will preclude shortnose sturgeon from completing any essential behaviors such as resting, foraging or migrating or that the fitness of any individuals will be affected.

Additionally, there is not expected to be any increase in energy expenditure that has any detectable effect on the physiology of any individuals or any future effect on growth, reproduction, or general health. Given that Atlantic sturgeon are known to actively seek out cooler waters when temperatures rise to 28°e (82.4°P), any Atlantic sturgeon encountering bottom waters with temperatures above 28°e (82.4°P) area are likely to avoid it. Reactions to this elevated temperature are expected to be limited to swimming away from the plume by swimming around it. Given the extremely small percentage of the action area and of the Bay that may have temperatures elevated above 28°e and the limited spatial and temporal extent of any elevations of bottom water temperatures above 28°e, it is extremely unlikely that these minor changes in behavior will preclude Atlantic 21 sturgeon from completing any essential behaviors such as resting, foraging or migrating or that the fitness of any individuals will be affected.

Additionally, there is not expected to be any increase in energy expenditure that has any detectable effect on the physiology of any individuals or any future effect on growth, reproduction, or general health. We have considered the potential for Atlantic sturgeon to be exposed to temperatures that could result in mortality (33.7°C or greater).

Because we expect Atlantic sturgeon to avoid waters with temperatures greater than 28°C, it is extremely unlikely that they would swim through those waters to reach areas where the water is warm enough to result in mortality.

Given that fish are known to avoid areas with unsuitable conditions and that Atlantic sturgeon are likely to actively avoid heated areas, as evidenced by Atlantic sturgeon moving to deep cool water areas during the summer months (see ASSRT 2007 and Damon-Randall et al.. 2010), it is likely that Atlantic sturgeon will avoid the area where temperatures are greater than tolerable.

As such, it is extremely unlikely that any Atlantic sturgeon would remain within the area where surface temperatures are elevated to 33.7°C (92.7°F) and be exposed to potentially lethal temperatures.

This risk is further reduced by the limited amount oftime Atlantic sturgeon spend near the surface, the small area where such high temperatures will be experienced and the gradient of warm temperatures extending from the outfall; if any Atlantic sturgeon are present, they are likely to begin avoiding areas with temperatures greater than 28°C (82.4°F) and are unlikely to remain within the heated surface waters or swim towards the outfall and be exposed to temperatures which could result in mortality.

We have considered whether the avoidance behavior expected for whales, sea turtles and Atlantic sturgeon discussed above, constitutes "take" as defined by the ESA. NMFS has not defined "harassment," a type of take under the ESA. The term "harass" has not been defined by NMFS; however, it is commonly understood to mean to annoy or bother. In addition, legislative history helps elucidate Congress' intent: "[take] includes harassment, whether intentional or not. This would allow, for example, the Secretary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young" (HR Rep.93-412, 1973). The U.S. Fish and Wildlife Service has defined harassment to mean, an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly impair normal behavioral patterns including breeding, feeding or sheltering" (50 CFR 17.3). For purposes of this consultation, we interpret harassment to be a significant disruption or delay in carrying out essential behaviors that is likely to cause injury. As explained above, we do not anticipate any significant impairment of any normal behaviors that is likely to cause injury as a result of avoidance of heated waters. Therefore, we do not anticipate any avoidance-related effects to listed species from the thermal plume to rise to the level oftake. Effects to Prey NRC has concluded that thermal impacts from Pilgrim operations have not noticeably altered aquatic communities near Pilgrim, except in very small areas (i.e., less than 1 acre; NRC 2007). We have considered the potential for heated effluent to affect the abundance or distribution of prey in the action area. 22 Kemp's ridley and loggerhead sea turtles, as well as Atlantic sturgeon, feed on benthic invertebrates.

Mobile invertebrates are likely to avoid the area where temperatures are above their thermal tolerance.

Considering that the maximum benthic area where water temperatures would be 1°C above ambient is limited to 8.4 acres, all effects to the benthic community due to the thermal plume are expected to be limited to this area. Given the small area that these benthic prey species would be displaced and the likelihood that these species would avoid intolerant temperatures and not be injured or killed due to exposure to intolerable temperatures, any effects to foraging Kemp's ridley and loggerhead sea turtles and Atlantic sturgeon will be insignificant and limited only to the distribution of their prey away from the thermal plume. Leatherbacks foraging off Massachusetts primarily consume the scyphozoan jellyfishes, Cyanea capillata and Chrysaora quinquecirrha (Dodge et at.. 2011). The thermal tolerance of Chrysaora quinquecirrha is approximately 30°C (Gatz et at.. 1973); Cyanea capillata experience mortality at temperatures of34-36°C (Cargo and Schultz 1967). The area where these temperatures could be experienced is small and limited at the bottom to an area no larger than 0.91 acres (see above) and at the surface to an area smaller than 11.25 acres (see above).. .Given the small area that these benthic prey species would be displaced and the likelihood that these species would avoid intolerant temperatures and not be injured or killed due to exposure to intolerable temperatures, any effects to foraging leatherback sea turtles will be insignificant and limited only to the distribution of their prey away from the thermal plume. The distribution of fish species that humpback and fin whales prey upon could be affected by the* thermal plume. Field studies on the distribution of Atlantic herring indicate that this species prefers temperatures below 16°C (Collette and Klein-MacPhee 2002); thus, this species is unlikely to be in the action area when ambient temperatures are above 16°C. When ambient temperatures are 16°C, the area at the bottom with water temperatures 1°C or more above ambient was measured at 1.08 acres (see Table 5.1-3 in ENSR 2000); the surface area above their preferred temperature would be less than 216 acres (ENSR 2000). Sand lance tolerate temperatures up to 11°C, but are most common at temperatures up to 6°C. This species is benthic and not present at the surface. The area of the bottom that could be warm enough to affect this . species is less than 1 acre. Pollock can tolerate temperatures up to 14°C, but adults do not occur at the surface when temperatures are greater than 11.1 °C (Collette and Klein-MacPhee 2002); similar to Atlantic herring, the area that would be avoided by this species is limited to less than 216 acres at the surface and less than 1 acre at the bottom. Mackerel tolerate temperatures up to about 20°C. During these conditions, the surface area that this species may avoid could be as large as 3,000 acres; however, because the plume is limited to depths of 4 feet from the surface, mackerel would only be displaced from surface waters, not from the entirety of this area. Given the small area that prey species for humpback and fin whales would be displaced and the likelihood that these species would avoid intolerant temperatures and not be injured or killed due to exposure to intolerable temperatures, any effects to foraging humpback and right whales will be insignificant and limited only to the distribution of their prey away from the thermal plume. As discussed above, right whales feed on copepods, primarily on C. finmarchicus, hut Pseudocalanus spp. and Centropages spp. Different populations of C. finmarchicus are to have variable thermal tolerances; this species has been documented in the wild temperature measurements or estimates ranged from 3.1 to 28.1 °C; this species was abundance where water temperatures ranged from 7 -BOC and very scare Where it was above 21°C (Kane 2005). Halcrow (1963) reported this species being found in waters of -2 to 22°C. A lab study indicated C. jinmarchicus sampled from the Gulf of Maine, did not experience mortality upon exposure of temperatures of 18°C for 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, but did have mortality when . exposed to this temperature for up to 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> (Voznesensky et al.. 2004). A lab study indicated survival of C. jinmarchicus was unaffected by temperatures up to 13.5°C (Willis 2007). Centropages spp. are found at temperatures from I-24°C (Bonnet et al.. 2007); Pseudocalanus spp. are found at temperatures up to at least 20°C (Ji et al.. 2009). Copepods are mobile and can move through the water column. During the time of year when right whales are foraging in Cape Cod Bay (January -May), ambient water temperatures are typically 0-10°C. Copepod distribution is not likely to be affected at temperatures below 21°C (see citations referenced above). At ambient water temperatures of 11.5°C and below, the area which would experience an increase in water temperature more than 11°C above ambient is limited to less than 0.5 acres (see table 5.1-1 in ENSR 2000); the area at the bottom which would experience temperatures this high is less than 0.13 acres. Given the small size of the area where the distribution of copepods would be affected (0.5 acres; less than 0.0002% of the surface area of Cape Cod Bay) and that copepods are likely to avoid the area rather than be injured or killed, any effect to foraging right whales is extremely unlikely.

Effect on Oceanographic Feat.ures We have considered the potential for the thermal plume to affect oceanographic features that serve to aggregate copepods.

As discussed by Pace and Merrick (2008), the prominent source of copepods that become aggregated in Cape Cod Bay is Wilkinson and Jordan Basin; circulation patterns within Cape Cod Bay entrain these copepods produced elsewhere and serve to aggregate the copepods in densities sufficient for right whale foraging.

These source areas are at least 100 miles away and "upstream" from the waters where the thermal plume is detectable so it is extremely unlikely that these sources of copepods are affected at all by operations of Pilgrim. Several factors are thought to concentrate copepods in Cape Cod Bay. These include currents and circulation patterns, bathymetric features (basins, banks, and channels), oceanic fronts, density gradients, and temperature regimes (Wishner et al.. 1988, Mayo and Marx 1990, Murison and Gaskin 1989, Baumgartner et al.. 2003a, Jiang, et a12007, Pace and Merrick 2008). The major oceanographic features include the Maine Coastal Current (MCC), Georges Bank cyclonic frontal circulation system, the basin-scale cyclonic gyres (Jordan, Georges and Wilkinson), the deep inflow through the NEC, the shallow outflow via the Great South Channel and the shelf-slope front (SSP) (Gangopadhyay et al.. 2003, Pace and Merrick 2008). It is also thought that some variability in the availability of copepods is linked to water temperature changes associated with the North Atlantic Oscillation (Greene at al. 2004). It is thought that these features combine to result in conditions that affect the distribution of copepods throughout the Gulf of Maine, including Cape Cod Bay. We have considered whether the thermal plume from Pilgrim could affect any ofthese conditions in a way that would affect copepods and therefore, foraging right whales. However, because these conditions and patterns are regional to global scale, and temperature increases from Pilgrim are not detectable at distances more than 1.4 miles from the outfall, it is extremely unlikely that any of these conditions would be affected 24 by the thennal plume. Therefore, it is extremely unlikely that the factors that serve to aggregate copepods in Cape Cod Bay would be affected by continuing operations of Pilgrim. Other Pollutants Discharged from the Facility Pollutants discharged from Pilgrim are regulated under the facility's NPDES pennit (MA0003557; EPA 1991 and EPA 1994). Limits on the concentration of pollutants in effluent are included when required for a specific type of facility or when a reasonable potential analysis indicates that there is a reasonable potential for an excursion from a water quality standard (then, a water quality based limit is required).

The NPDES pennit also regulates thennal discharges (see above), total residual oxidants (chlorine is used to control biofouling), pH, Oil and Grease, Total Suspended Solids (TSS), Copper, and Iron. The pennit also requires WET testing. All pollutant limits authorized by the.NPDES pennit to be discharged by Pilgrim are at levels at or . below EPA's aquatic life criteria.

During spring, summer, and fall, the circulating water system is chlorinated for up to two hours per day, one hour each pump, to control nuisance biological growth. Total residual chlorine cannot exceed 0.10 parts per million (ppm) in the cooling water discharge (outfall 001). Continuous chlorination of the service water system can be used to control nuisance biological organisms with a maximum daily concentration of 1.0 ppm and an average monthly .concentration of 0.5 ppm in the service water (outfall 010). During chlorination, the screens are operated, and sodium thiosulfate is added to the wash water to neutralize the chlorine.

Sodium thiosulfate is considered nontoxic.

Entergy has confinned that no other . biocides are used at Pilgrim. Water quality criteria are developed by EPA for protection of aquatic life (see http://water.epa.gov/scitech/swguidance/standards/currentJindex.cfm for current criteria table; last accessed May 1,2012). Both acute (short tenn exposure) and chronic (long tenn exposure) water quality criteria are developed by EPA based on toxicity data for plants and animals. Often, both saltwater and freshwater criteria are developed, based on the suite of species likely to occur in the freshwater or saltwater environment.

For aquatic life, the national recommended toxics criteria are derived using a methodology published in Guidelines for DeriVing Numeric National Water Quality Criteria for the Protection of Aquatic Organisms and Their Uses (EPA 1985). Under these guidelines, criteria are developed from data quantifying the sensitivity of species to toxic compounds in controlled chronic and acute toxicity studies. The final recommended criteria are based on multiple species and toxicity tests. The groups of organisms are selected so that the diversity and sensitivities of a broad range of aquatic life are represented in the criteria values. To develop a valid criterion, toxicity data must be available for at least one species in each of eight families of aquatic organisms.

The eight taxa required are as follows: (1) salmonid (e.g., trout, salmon); (2) a fish other than a salmonid (e.g., bass, fathead minnow); (3) chordata (e.g., salamander, frog); (4) planktonic crustacean (e.g., daphnia);

(5) benthic crustacean (e.g., crayfish);

(6) insect (e.g., stonefly, mayfly); (7) rotifer, annelid (wonn), or mollusk (e.g., mussel, snail); and, (8) a second insect or mollusk not already represented.

Where toxicity data are available for multiple life stages of the same species (e.g., eggs, juveniles, and adults), the procedure requires that the data from the most sensitive life stage be used for that species.

The result is the calculation of acute (criteria maximum concentration (CMC)) and chronic (criterion continuous concentration (CCC)) criteria.

CMC is an estimate of the highest concentration of a material in surface water to which an aquatic community can be exposed briefly (i.e., for no more than one hour) without resulting in an unacceptable effect. The CCC is an estimate of the highest concentration of a material in surface water to which an aquatic community can be exposed indefinitely without resulting in an unacceptable effect. EPA defines "unacceptable acute effects" as effects that are lethal or immobilize an organism during short term exposure to a pollutant and defines "unacceptable chronic effects" as effects that will impair growth, survival, and reproduction of an organism following long term exposure to a pollutant.

The CCC and CMC levels are designed to ensure that aquatic species exposed to pollutants in compliance with these levels will not experience any impairment of growth, survival or reproduction.

Data on toxicity as it relates to whales, sea turtles, and Atlantic sturgeon is extremely limited. In the absence of species specific chronic and acute toxicity data; the EPA aquatic life criteria represent the best available scientific information.

Absent species specific data, NMFS believes it is reasonable to consider that the CMC and CCC criteria are applicable to NMFS listed species as these criteria are derived from data using the most sensitive species and life stages for which information is available.

As explained above; a suite of species is utilized to develop criteria and these species are intended to be representative of the entire ecosystem, including marine mammals and sea turtles and their prey. These criteria are designed to not only prevent mortality but to prevent all "unacceptable effects," which, as noted above, is defined by EPA to include not only lethal effects but also effects that impair growth, survival and reproduction.

For the Pilgrim facility, the relevant water quality criteria are the Massachusetts water quality criteria, which must be certified by EPA every three years. This certification process is designed to ensure that the MA water quality standards are consistent with, or more protective than, the EP A national recommended aquatic life criteria.

Based on this reasoning outlined above, for the purposes of this consultation, NMFS considers that pollutants that are discharged with no reasonable potential to cause excursions in water quality standards, will not cause effects that impair growth, survival and reproduction oflisted species. Therefore, the effect of the discharge of these pollutants at levels that are less thatthe relevant water quality standards, which by design are consistent with, or more stringent than, EPA's aquatic life criteria, will be insignificant on NMFS listed species. Radiological Impacts We have reviewed the information presented in the FEIS and the most recent reports of the Radiological Evaluation Monitoring Report ((REMP) Entergy 2009,2010 and 2011) as well as the Radiological Effluent Release Reports for those same years to assess any radiological impacts to listed species or their prey. As described in the REMP, radioactivity released from the liquid effluent system to the environment is limited, controlled, and monitored by a variety of systems and procedures which include: reactor water cleanup system; liquid radwaste treatment system; sampling and analysis of the liquid radwaste tanks; and, liquid waste effluent discharge header radioactivity

• ',. monitor. Effluent is tested for radioactivity before being released and is only if the radioactivity levels are below the federal release limits. Thus, releases would only occur to Cape Cod Bay after it is determined that the amount of radioactivity in the wastewater is diminished to acceptable levels that meet NRC criteria.

The NPDES perinit issued by EPA requires that all discharges of radioactive materials be in compliance with NRC criteria.

We reviewed the Radiological Effluent Release Reports for 2008, 2009 and 2010 (Entergy 2009b, 201 Ob and 2011 b). There were no releases of liquid effluents containing radioactivity in 2008, four in 2009 and six in 2010. For the six 2010 discharges, the. mean concentration of fission/activation products was 0.0000000000600 gCi/mL; the mean concentration of tritium in these discharges was 0.00000000404 pCi/mL (Entergy 20llb). As reported in the most recent REMPs, during 2008, 2009 and 2010, samples (except charcoal cartridges) collected as part of the REMP at Pilgrim continued to contain detectable amounts of naturally-occurring and man-made radioactive materials.

No samples indicated any detectable radioactivity attributable to Pilgrim Station operations.

This suggests that despite the discharge of radioactive effluent from Pilgrim during these years, this low: level of radioactivity is not detectable in the environment above background levels. These results were consistent in surface* water samples, sediments (including collections in the discharge canal), Irish moss, blue mussels, soft shell clams, quahogs, lobsters and four groups of fish (bottom oriented, near bottom, anadromous and coastal migratory).

Naturally-occurring potassium-40, radium-226, and actiniumlthorium-228 were detected in several of the surface water samples, especially those composed primarily of seawater.

Eleven samples offish were collected during 2010. The only radionuclides detected in any of the samples were naturally-occurring potassium-40 and 226. No radioactivity attributable to Pilgrim was detected in any of the samples collected during 2008-201 0, and results of any detectable naturally occurring radioactivity were similar to those observed in the preoperational monitoring program. It is important to note that no whales, sea turtles or Atlantic sturgeon have been tested to determine levels of radio nuclides; however, because in the most recent years that sampling occurred, no sampleS of any species have detected radionuclides that would be attributed to Pilgrim, it is reasonable to anticipate that similar results would be seen if these listed species were sampled. Based on this infonnation,we do not expect that any whales, sea turtles or Atlantic sturgeon contain any detectable levels of radionuclides attributable to Pilgrim. As such, radiological impacts to these species are extremely unlikely.

Thus, NMFS considers the effects to listed species and their prey from radionuclides to be insignificant and discountable.

Climate Change In the future, global climate change is expected to continue and may impact listed species and their habitat in the action area. The period considered for extended operations of Pilgrim is limited to 20 years (i.e., through June 8, 2032). We considered climate change impacts in the action area over the next 20 years to prOvide context within which the effects of the action will occur from present to June 8, 2032. Much about the rate of potential climate change and associated changes in weather patterns and ambient water temperatures is unknown; however, as explained below, given the likely rate of change associated with climate impacts in Cape Cod 27 Bay generally and the action area specifically, it is unlikely that climate-related impacts will have a significant effect on the status oflisted species over the temporal scale ofthe proposed action or that in this time period, the abundance, distribution, or behavior ofthese species in the action area will change as a result of climate change related impacts. The greatest potential for climate change to impact our assessment" would be if (1) ambient water temperatures increased enough such that a larger portion of the thermal plume had temperatures that were stressful for listed species or their prey or if (2) the status, distribution and abundance of listed species or their prey changed significantly in the action area. Sea surface temperatures have fluctuated around a meari for much of the past century, as measured by continuous 100+ year records at Woods Hole (Mass.), and Boothbay Harbor (Maine) and shorter records from Boston Harbor and other bays. Periods of higher than average temperatures (in the 1950s) and cooler periods (1960s) have been associated with changes in the North Atlantic Oscillation (NAO), which affects current patterns.

Over the past 30 years however, records indicate that ocean temperatures in the Northeast have been increasing.

For example; Boothbay Harbor's temperature has increased by about 1°C since 1970. The model projections are for an increase of somewhere between 3-4°C by 2100 and a pH drop of 0.3-0.4 units by 2100 (Frumhoff et al.. 2007). Assuming that there is a linear trend in increasing water temperatures and decreasing pH, one could anticipate a 0.03-.04°C increase each year, with an increase in temperatureofO.6-0.8°C between now and 2032 and a 0.004 unit drop in pH per year, with a drop of 0.06-0.08 units between now and 2032. Given this small increase, it is not likely that over the proposed 20-year operating period that any water temperature changes would be significant enough to affect the conclusions reached by us in this consultation.

If new information on the effects of climate change becomes available then reinitiation of this consultation may be necessary.

Non-routine and Accidental Events By their nature, non-routine and accidental events that may affect the marine environment are unpredictable and typically unexpected.

In the FSEIS, NRC considers design-basis accidents (DBAs); these are those accidents that both the licensee and the NRC staff evaluate to ensure that the plant can withstand normal and abnormal transients, and a broad spectrum of postulated accidents, without undue hazard to the health and safety of the public. NRC states that "a number of these postulated accidents are not expected to occur during the life of the plant, but are evaluated to establish the design basis for the preventive and mitigative safety systems of the facility" (NRC 2007). NRC states that the environmental impacts of these DBAs will be "small" (i.e., insignificant), because the plant is designed to withstand these types of accidents including during the extended operating period. NRC also states that the risk of severe accidents initiated by internal events, natural disasters or terrorist events is small. As noted by Thompson (2006) in a report regarding the risks of spent-fuel pool storage, the available information does not allow a statistically valid estimate of the probability of an attack-induced spent-fuel-pool fire. However, Thompson states that "prudent judgment" indicates that a probability of at least one per century within the U.S. is a reasonable assumption.

There have been very few instances Of accidents or natural disasters that have affected nuclear facilities and none at Pilgrim that have led to any impacts to the marine environment.

While the experience at Fukishima in Japan provides evidence that natural disaster induced problems at nuclear facilities can be severe and may have significant consequences to the environment, the risk of non-routine and accidental events at Pilgrim that would affect the marine environment, and subsequently affect listed species and critical habitat, is extremely low. Because of this, effects to listed species are discountable.

We expect that in the unlikely event of any accident or disaster that affects the marine environment, reinitiation of consultation, or an emergency consultation, would be necessary.

Dredging at Pilgrim Indirect effects are those that are caused by the proposed action and are later in time, but are still reasonably certain to occur. They include the effects on listed species or critical habitat of future activities that are induced by the action subject to consultation.

Interrelated actions are those that are part of a larger action and depend upon the larger action for their justification.

Interdependent actions are those that have no independent utility apart from the action under consideration (50 CFR 402.02; see also 1998 FWS-NMFS Joint Consultation Handbook, pp. 26 to 4-28). Entergy occasionally carries out dredging in the discharge canal and in the intake embayment (1. Schiffer, Entergy, pers. Communication 8). Dredging is not required as a condition of Pilgrim's existing operating license and is not considered as part of the proposed license. Entergy indicated that dredging occurs approximately every 12 years. Dredging last occurred in 2011 and in 1999. Because dredging occurs approximately every 12 years, it is likely that dredging would occur once during the 20 year extended operating period. We have considered whether the effects of this dredging fit the definitions of indirect effects and the definitions of interrelated or interdependent actions. For the reasons explained below, we have determined that while the future dredging can be considered an interrelated or i'nterdependent action, the effects of the future dredging are so uncertain that they do not meet the definition of indirect effects and cannot be meaningfully considered in this consultation.

The* dredging meets the definition of an interdependent action because it has no independent utility apart from the continued operation of Pilgrim (i.e., but for the continued operation of Pilgrim there would be no need to remove sediment from these areas). It also meets the definition of an interrelated action because while the dredging is not part of the action proposed by NRC (i.e., continued operation of Pilgrim), ft does rely solely onNRC's proposed action for its justification.

Again, the dredging would not occur "but for" the issuance of a license by NRC. The effects of dredging, however, do not meet the definition of indirect effects. While the effects of dredging will be "caused" by the continued operation of Pilgrim and the need to maintain the intake and ' discharge areas to support such operation, and some type and amount of dredging will occur later in time according to Entergy, we lack a reasonable certainty regarding the effects that will occur in the future for several reasons. First, no specific plans for future dredging are available; also, no permits or approvals, which are required from the U.S. Army Corps of Engineers, have been obtained.

This sheds uncertainty on both the future dredging project itself and its potential effects. Second, while we have a general idea ofthe location where dredging will occur and know, generally, the types of dredges that could be used to complete the dredging, we have no information on the volume of material to be removed, the timing of the dredging (i.e., the season), the duration of dredging or the actual type of dredge to be used. Different types of dredges can pose different risks to listed species and habitat. Information on all of these factors is necessary to consider effects of the dredging on listed species. Therefore, while a dredging . project itself meets the definitions of an interrelated and interdependent activity, the effects of 8 Phone conservation between J. Schiffer, Entergy, and Mark Murray-Brown, NMFS on May 7,2012. 29 the dredging are not reasonably certain at this time for us to consider them in this consultation.

However, any proposals for future dredging will need a permit from the U.S. Army Corps of Engineers, which would trigger the need for a subsequent ESA Section 7 consultation.

Effects to Right Whale Critical Habitat We have considered whether the continued operation of Pilgrim would have any direct or indirect effects to right whale critical habitat. Right whales use the waters of Cape Cod Bay for foraging.

Within critical habitat, the thermal plume is no longer detectable and any pollutants discharged from Pilgrim, including chlorine, are fully mixed and would no longer be detectable from background levels. As such, there would be no direct effects to critical habitat. We do expect that the continued operation of Pilgrim would result in a reduction in copepods compared to the levels that would be present if no copepods were entrained at Pilgrim. However, as explained above, because we expect the loss to be extremely small and undetectable from natural variability, the effect ofthis loss on foraging right whales will be insignificant.

We do not expect mortality of copepods from exposure to the thermal plume as we expect copepods to avoid areas above their thermal tolerance (see Lenz et al.. 2005 for a discussion of the escape response of copepods);

we expect these effects to distribution to be minor and be limited to an area outside of critical habitat. Copepods in Cape Cod Bay originate from Jordan, Wilkinson and George's Basin. The influence of Pilgrim does not extend to these areas and we do not expect any effects to the generation of copepods in these areas that could be attributable to the continued operation of Pilgrim. The operation of Pilgrim will also not affect any of the physical or oceanographic conditions that serve to aggregate copepods in Cape Cod Bay. For these reasons, there will be no indirect effects to critical habitat. Therefore, we have determined that the continued operation of Pilgrim will have no effect on right whale critical habitat. CONCLUSION As discussed on our March 22, 2012 call, we do not agree with your determination that the proposed renewal will have no effect on listed species. The agencies agreed, however, to engage in informal consultation to determine whether formal consultation was necessary or if consultation could be concluded with a "not likely to adversely affect" finding. As explained above, based on information from NRC, Entergy, and other sources, all effects to listed species will be insignificant or discountable.

Therefore; the continued operation of Pilgrim under the terms of a renewed operating license is not likely to adversely affect any listed species under NMFS jurisdiction.

We have determined that the continued operation of Pilgrim will have no effect on. right whale critical habitat. Reinitiation of consultation is required and shall be requested by the Federal agency or by the Service, where discretionary Federal involvement or control over the action has been retained or is authorized by law and: (a) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered iIi the consultation; (b) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the consultation; or (c) If a new species is listed or critical habitat designated that may be affected by the identified action. No take is anticipated or exempted; take is defined in the ESA as "to harass, hann, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct." Ifthere is any incidental take of a listed species, reinitiation would he required.

If any whales, sea turtles 30 or Atlantic sturgeon are observed at or near Pilgrim, including in the discharge canal, at the trash racks or on the intake screens, this should be immediately reported to us. We have identified several areas where additional and/or more recent information would be helpful to better characterize effects of the Pilgrim facility.

While this information was not necessary to complete this consultation, we request that you consider adding conditions to any new license for Pilgrim to require: (1) monitoring and reporting zooplankton entrainment, including copepods (particularly, Calanus finmarchus, Pseudocalanus spp. and Centro pages spp); (2) monitoring zooplankton at nearfield and farfield locations to serve as a check on your determination that effects of Pilgrim on zooplankton are small and localized; (3) establishing a monitoring program for ambient water temperatures and the thermal effluent to better understand how any changes in ambient water temperatures during the relicensing period, which may partly be related to global and/or regional climatological changes, may change the characteristics and distribution of the thermal plume; and (4) revising the species sampled in the REMP to include species that serve as forage for listed species and species that occupy similar ecological niches as Atlantic sturgeon, whales and sea turtles and could be considered surrogate species for radionuclide testing. Please note that as announced on October 6, 2010 (see 75 FR 61690), we are continuing our ongoing rulemaking process to designate critical habitat for North Atlantic right whales. Should a final rule be promulgated, reinitiation of this consultation may be necessary.

Technical Assistance for Candidate Species In 2011, we designated blueback herring and alewife as "Candidate Species;" a status review for these species is currently ongoing. NMFS candidate species are those petitioned species that are actively being considered for listing as endangered or threatened under the ESA, as well as those species for which NMFS has initiated an ESA status review that it has announced in the Federal Register.

For detailed definitions and explanations, please refer to the April 15, 2004 and October 17,2006, Federal Register notices (69 FR 19975), (71 FR 61022), which revised the Candidate Species definition.

Blueback herring and alewife are impinged annually and occasionally entrained at Pilgtim (NRC 2007, Normandeau 2011 band ENSR 2000). As they are candidate species that could be listed under the ESA in the future, we encourage you to work with Entergy to minimize effects to these species to the maximum extent possible.

Monitoring requirements for these species should be incorporated into the new license. We request that any monitoring reports produced that contain information on these species be provided to us. We also request that you work with Entergy to .investigate why early life stages (larvae) of alewife are present near the intakes (as evidenced by entrainment (NRC 2007)). Alewife normally spawn in freshwater and presence of early life stages in marine waters, such the Pilgrim intake, is unexpected and warrants further investigation to determine if the operations of Pilgrim contribute to this unusual behavior or if it is due to unrelated factors. Should either species be listed under the ESA in the future, reinitiation of consultation would be necessary.

Questions specific to candidate species and the status review process should be directed to Kimberly Damon-Randall (978) 281-9328.

31 Coordination with EPA We are providing EPA with a copy of this letter for their records. If in the future EPA issues a revised NPDES permit for this facility, reinitiation ofthis consultation, involving both EPA and NRC, is likely to be necessary.

Additionally, it is our understanding that revised CW A 316(b) regulations may be issued by EPA in 2012. If there are any modifications to the Pilgrim facility resulting from the implementation of these regulations, reinitiation of this consultation is likely to be necessary.

Should you have any questions about this correspondence please contact Kimberly Randall, Acting Assistant Regional Administrator for Protected Resources at the number provided above. Sincerely, Daniel S. Morris Acting Regional Administrator Chiarella, FINER4 Webster, EPA Boston Balsam, Logan -NRC Literature Cited Atlantic Sturgeon Status Review Team (ASSRT). 2007. Status Review of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus).

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File code: Sec. 7 NRC Pilgrim Power Station PCTS: VNERJ2006/07083 39

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR

) (Pilgrim Nuclear Power Station) ) ASLBP No. 12-917-05-LR )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Letter to the Atomic Safety and Licensing Board regarding the Attached ESA Informal Consultation from the NMFS, dated May 22, 2012, in the above-captioned proceeding have been served on the following by the Electronic Information Exchange, this 22nd day of May, 2012.

Administrative Judge Richard F. Cole Atomic Safety and Licensing Board Panel

Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel

Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Paul.Abramson@nrc.gov Administrative Judge

Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

E-mail: Ann.Young@nrc.gov Office of Commission Appellate Adjudication Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

E-mail: OCAAMAIL.Resource@nrc.gov Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (Via Internal Mail Only) Office of the Secretary Attn: Rulemakings and Adjudications Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov

Sheila Slocum Hollis Duane Morris LLP

1667 K Street, NW, Suite 700 Washington, DC 20006 E-mail: sshollis@duanemorris.com Terence A. Burke, Esq. Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213

E-mail: tburke@entergy.com

Mary Lampert 148 Washington Street Duxbury, MA 02332

E- mail: mary.lampert@comcast.net David R. Lewis, Esq. Paul A. Gaukler, Esq. Pillsbury, Winthrop, Shaw, Pittman, LLP

2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord Fire Chief & Director Duxbury Emergency Management Agency 668 Tremont Street Duxbury, MA 02332 E-mail: nord@town.duxbury.ma.us Town Manager Town of Plymouth 11 Lincoln St. Plymouth, MA 02360 E-mail: msylvia@townhall.plymouth.ma.us Richard R. MacDonald Town Manager 878 Tremont Street Duxbury, MA 02332

E-mail: macdonald@town.duxbury.ma.us

Margaret Sheehan 61 Grozier Road Cambridge, MA 02138 E-mail: meg@ecolaw.biz Matthew Brock Assistant Attorney General Commonwealth of Massachusetts One Ashburton Place Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us

Anne Bingham 78A Cedar St Sharon, MA 02067

Email: annebinghamlaw@comcast.net

Signed (electronically) by

_______________________________

Susan Uttal Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1582

E-mail: Susan.Uttal@nrc.gov Date of signature: May 22, 2012