ML080770262
| ML080770262 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/29/2008 |
| From: | Office of Nuclear Reactor Regulation |
| To: | Division of License Renewal |
| References | |
| Download: ML080770262 (66) | |
Text
From: Bo Pham To: "Andrew Stuyvenberg" <ALS3@nrc.gov> Date: 2/29/2008 10:55:36 AM
Subject:
Fwd: FW: Materials on Shortnose Sturgeon cc: "Christopher Chandler" <CCC1.EXPO.Exchange>,<IPNonPublicHeari ngFile@nrc.gov>
drew, below is an email from jill with the '79 BO, which we already have, and a summary of their position regarding the contention.
Bo Pham Sr. Project Manager Division of License Renewal U.S. Nuclear Regulatory Commission 301-415-8450 O-11C12 bmp@nrc.gov
>>> "Lagace, Jill" <JBroc94@entergy.com> 2/28/08 4:12 PM >>>
Bo- I am not sure about Drew's email address. Could you also send this along to him? Thank you, Jill The attached information relates to the shortnose sturgeon and our arguments in the NRC proceeding relating to compliance with the Endangered Species Act -- they are (1) a copy of the 1979 Biological Opinion issued in the initial EPA proceeding on behalf of NMFS relating to sturgeon and the operation of Indian Point; (2) a copy of Mark Mattson's declaration in the current NRC proceeding; and (3) a copy of the ESA portion of our brief filed in the current NRC proceeding. Our argument in the NRC proceeding hits essentially four points: (1) compliance of current operations with ESA requirements is beyond the scope of this proceeding (as are all compliance matters); (2) under NRC regulations, Entergy is required only to assess the impacts to sturgeon in the ER, and a sufficient analysis was included in the ER; (3) NY provides only speculation that IP operations will jeopardize the sturgeon, which is contradicted by the evidence provided by IP (including the biological opinion attached); and (4) IP is in compliance with the ESA by virtue of the 1979 biological opinion (attached above). The issue of compliance comes down to whether Indian Point requires a Section 10 permit to authorize any incidental take of shortnose sturgeon. More specifically, the issue is whether a facility which had been issued a biological opinion under Section 7 of the ESA that concluded that the proposed activity was not likely to jeopardize the species in question (as is the case for Indian Point) needed to take the additional and redundant step of applying for an incidental take permit for the same activity under Section 10 of the ESA. In 1982, Congress clarified that it was not its intention to require both a Section 7 biological opinion and an incidental take permit for the same activity. Congress passed a clarifying amendment to this effect in 1982, and the legislative history cited in the attached excerpt of the brief underscores this point.
In NY's reply brief, they did not address this legal argument. Instead, they characterize the biological opinion as ol d and suggest that Entergy represented to DEC that it would obtain an incidental take permit. They also point out that Roseton and Bowline did obtain such permits (though that is beside the legal point of whether such a permit is in fact required). The thrust of their response to our ESA argument is that the ER does not provide sufficient information on which an impact assessment can be based, because there is no impingement sampling data after 1990. As set out in paragraph 35 of Mark Mattson's declaration, DEC discontinued the impingement sampling program for sturgeon after the installation of the new fish screens (which occurred in 1992).
IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
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Hearing Identifier: IndianPointUnits2and3NonPublic Email Number: 429 Mail Envelope Properties (47DE58AE.HQGWDO01.OWGWPO04.200.2000006.1.1789DE.1)
Subject:
Fwd: FW: Materials on Shortnose Sturgeon Creation Date: 2/29/2008 10:55:36 AM From: Bo Pham Created By: BMP@nrc.gov
Recipients "Christopher Chandler" <CCC1.EXPO.Exchange> <IPNonPublicHearingFile@nrc.gov> "Andrew Stuyvenberg" <ALS3@nrc.gov>
Post Office Route OWGWPO04.HQGWDO01 nrc.gov
Files Size Date & Time MESSAGE 4326 2/29/2008 10:55:36 AM TEXT.htm 7471 3/17/2008 11:40:30 AM 1979 Biological Opinion.pdf 907166 3/17/2008 11:40:30 AM FINAL _ Mattson Declaration (1_18_08) (2).PDF 2550777 3/17/2008 11:40:30 AM Brief Excerpt.pdf 251805 3/17/2008 11:40:30
AM Options Priority: Standard Reply Requested: No Return Notification: None None
Concealed
Subject:
No Security: Standard drew, below is an email from jill with the '79 BO, which we already have, and a summary of their position regarding the contention.
Bo Pham Sr. Project Manager Division of License Renewal U.S. Nuclear Regulatory Commission 301-415-8450 O-11C12 bmp@nrc.gov
>>> "Lagace, Jill" <JBroc94@entergy.com> 2/28/08 4:12 PM >>> Bo- I am not sure about Drew's email address. Could you also send this along to him? Thank you, Jill The attached information relat es to the shortnose sturgeon and our arguments in the NRC proceeding relating to compliance with the Endangered Species Act --
they are (1) a copy of the 1979 Biological Opinion issued in the initial EPA proceeding on behalf of NMFS relating to sturgeon and the operation of Indian Point; (2) a copy of Mark Mattson's declaration in the current NRC proceeding; and (3) a copy of the ESA portion of our brief filed in the curr ent NRC proceeding.
Our argument in the NRC proceeding hits essentially four points: (1) compliance of current operations with ESA requirements is beyond the scope of this proceeding (as are all compliance matters); (2) under NRC regulations, Entergy is required only to assess the impacts to sturgeon in the ER, and a sufficient analysis was included in the ER; (3) NY provides on ly speculation that IP operations will jeopardize the sturgeon, which is contra dicted by the evidence provided by IP (including th e biological opinion attached); and (4) IP is in compliance with the ESA by virtue of the 1979 biological opinion (attached above
). The issue of compliance comes down to whether Indian Point requires a Section 10 permit to authorize any incidental take of shortnose sturgeon. More specifically, the issue is whether a facility wh ich had been issued a biological opinion under Sec tion 7 of the ESA that concluded that the proposed activity was not likely to jeopardize the species in question (as is the case for Indian Point) needed to take the additional and redundant step of applying for an incidental take permit for the same activity under Section 10 of the ESA. In 1982, Congress clarified that it was not its intention to require both a Section 7 biological opinion and an incidental take permit for the same activity. Congress passed a clarifying amendment to this effect in 1982, an d the legislative history cited in the attached excerpt of the brief underscores this point.
In NY's reply brief, they did not address this legal argument. Instead, they characterize the biological opinion as old and suggest that Entergy represented to DEC that it would obtain an incidental take permit. They also point out that Roseton and Bowline did obtain such permits (though that is beside the legal point of whether such a permit is in fact required). The thrust of their response to our ESA ar gument is that the ER does not provide suffici ent information on which an impact assessment can be based, because there is no impingement sampling data after 1990. As set out in paragraph 35 of Mark Mattson's declaration, DEC discontinued the impingement sampling program for sturgeon after the installation of the new fish screens (which occurred in 1992). Pa ge 1of 2 Materials on Shortnose Stur g eon 3/17/2008file://c:\EMailCa p ture\IndianPointUnits2and3NonPublic\429\attch1.htm
IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. ******************************************************************* *******************************************************************
This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. Thank you. *******************************************************************
Pa ge 2of 2 Materials on Shortnose Stur g eon 3/17/2008file://c:\EMailCa p ture\IndianPointUnits2and3NonPublic\429\attch1.htm
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY In the Matter of ENTERGY NUCLEAR INDIAN POINT 2, LLC, ENTERGY NUCLEAR INDIAN
POINT 3, LLC, and ENTERGY NUCLEAR OPERATIONS, INC. (Indian Point Nuclear Power Station)
Docket Nos. 50-247, 50-286 DECLARATION OF MARK T. MATTSON, PH.D.
IN OPPOSITION TO RIVERKEEPER CONTENTION EC-1 AND NEW YORK ATTORNEY GENERAL CONTENTIONS 31-32 I, Mark T. Mattson, Ph.D., declare as follows:
QUALIFICATIONS1.I am a Vice President and Principal Aquatic Ecologist with Normandeau Associates, Inc. ("Normandeau"), a professional consulting firm that specializes in ecological, environmental, and natural resources management services. My general
expertise is in aquatic ecology, particularly fisheries, and the application of field sampling design and analytical methods to evaluate anthropogenic influences on population and community dynamics of aquatic ecosystems. 2.I have particular depth and expertise in assessing the potential aquatic impacts of power-plant operations under Clean Water Act, §316(a) and (b), and equivalent state law. I have supervised at least twelve (12) site-specific assessments of potential impacts from power plant thermal discharges or cooling water intakes on aquatic ecosystems, and have participated in at least thirty (30) such assessments performed by Normandeau, over the past 30 years, mostly in the northeastern United
States.3.I have extensive, first-hand experience assessing the Hudson River ecology. It began with my post-graduate professional career in October 1979, working on the Hudson River Biological Monitoring Program ("HRBMP"). I have continued to remain involved in one or more aspects of this monitoring program in each of the past thirty (30) years from 1979 to present. My three decades of fisheries work on the Hudson River and New York Harbor also includes numerous cooling water intake studies performed for Indian Point, Bowline, Lovett, Danskammer Point, Roseton, and Albany Steam Stations. My 30 years of fisheries work on the Hudson River also includes several studies performed for the New York State Department of Environmental Conservation