ML13196A226

Email from B. Balsam, NRR to D. Logan, NRR Et Al., FW: Pilgrim Letter

ML13196A226
Person / Time
Site:	Pilgrim
Issue date:	07/31/2012
From:	Balsam B Office of Nuclear Reactor Regulation
To:	Logan D, Uttal S Office of Nuclear Reactor Regulation, NRC/OGC
References
FOIA/PA-2013-0135
Download: ML13196A226 (12)

Text

CraVer, Patti From: Balsam, Briana V\((

Sent: Tuesday, July 31, 2012 2:00 PM To: Logan, Dennis; Uttal, Susan; Lindell, Joseph; Smith, Maxwell; Hull, Amy

Subject:

FW: Pilgrim letter Attachments: Crocker07083-1 .pdf FYI. Here is an electronic copy of the letter that Susan received with missing pages. Amy-I can talk to you about what this means when you have time either later today or tomorrow morning.

Briana From: Julie Crocker [1] f'\ ( ,

Sent: Tuesday, July 31, 2012 1:03 PMI-To: Balsam, Briana

Subject:

Pilgrim letter Hi Briana -

here is the letter. My apologies, I was out of the office when these were signed and it was my understanding that my supervisor had transmitted this electronically to you, Dr. Hull and Dennis at that time. Apparently that did not happen although I do see that he sent Drew Stuyvenberg and Dennis an email on July 17 indicating that we were sending this letter. It was my understanding that these were mailed on July 17 so it is strange you are just receiving it now!

Julie Julie Crocker Protected Resources Division Northeast Regional Office National Marine Fisheries Service 55 Great Republic Drive Gloucester, MA 01930

'*.,* UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration

\ ~4 ,

NATIONAL MARINE FISHERIES SERVICE NORTHEAST REGION 55 Great Republic Drive

'&4,,,o' " Gloucester, MA 01930.2276 JUL 16 2012 Acting Chief Dr. Amy Hull, Environmental Review and Guidance Update Branch Office of Nuclear Reactor Regulation Mail Stop: 0-1 IFI U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

Dear Dr. Hull,

Our May 17, 2012, informal consultation with you, pursuant to section 7 of the Endangered Species Act (ESA) of 1973, as amended, concluded that the relicensing and continued operation of Pilgrim was not likely to adversely affect any listed species and would have no effect on right whale critical habitat. On May 29, 2012, you issued a renewed operating license to Entergy, authorizing an additional 20 years of operations at Pilgrim.

We received a letter dated June 28, 2012, from Ecolaw on behalf of the Jones River Watershed Association and Pilgrim Watch. This letter, enclosed here for your reference, questions the conclusions reached in our informal consultation. Ecolaw claims there is information indicating that Pilgrim operations may affect listed species or critical habitat in a manner or to an extent not considered in the consultation.

The ESA and its implementing regulations provide four criteria whereby the consulting agency or the Federal action agency must request reinitiation of formal consultation, As described in 50 CFR 402.16, reinitiation of formal 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) the amount or extent of taking specified in the ITS is exceeded; (b) new information reveals effects of these actions that may affect listed species or critical habitat in a manner or to an extent not previously considered; (c) any of the identified actions are subsequently modified in a manner that causes an effect to the listed species that was not considered in the Opinion; or (d) a new species is listed or critical habitat designated that may be affected by the identified actions. Based on previous discussions and correspondence with your staff during other consultations, we underst nd that, for purposes of section 7 consultation, NRC retains discretionary involvement, or control for the benefit of ESA listed species over any facility that operates pursuant to a nuclear power license issued by the NRC, or such discretionary involvement or control is authorized by law.

While not specifically stated in the regulations, in practice, we consider these reinitiation criteria to apply to informal consultations as well.. The regulations do not provide a process for a third party to request reinitiation of consultation. If the information presented by Ecolaw in their June letter reveals that the action affects listed species or critical habitat in a manner or to an extent not previously considered in the consultation, reinitiation of consultation would be required and shall be requested by the Federal agency or by NMFS. Alternatively, if the informal consultation failed to CAA\/

consider adequately an effect of the action on listed species or critical habitat, then the existing consultation should be modified or a new consultation should be initiated.

Ecolaw states that we need to consider a recent report of an Atlantic sturgeon in the North River, approximately 17 miles away from Pilgrim. During the consultation, we considered the effects of the action on Atlantic sturgeon. The recent documentation of a dead individual in the North River does not change our analysis. Ec6law also claims that our treatment of dredging was not appropriate. We request that you indicate to us whether any new information or plans for dredging are available that were not considered in our May 17 consultation letter to you.

The Ecolaw letter largely focuses on the claim that Pilgrim operates at a higher electrical capacity and on more days of the year than it did during the time when studies on the thermal plume and impingement and entrainment were carried out. It states that these changes in operations were approved in 2003, prior to NRC's issuance of the draft of final EIS for relicensing and'prior to the initiation of section 7 consultation. The letter states that because the facility will likely operate at a higher capacity for more time, the conclusions regarding effects of the action under the renewed license are invalid, particularly with regard to the impacts of the thermal plume, impingement and entrainment over time and in light of climate change. The thermal plume and impingement

/entrainment studies were used in the EIS and BA, and you directed us to them when we requested more information on the thermal plume and loss of prey during the consultation. There was no indication from NRC that any changes in project operations due to the higher electrical rating or higher annual capacity (i.e., operating on more days per year) made the studies unreliable or not representative of likely effects during the extended operating period. However, we are unable to evaluate the claims independently, and so, we request that you review Ecolaw's letter and provide us with your determination as to whether the letter presents information that the operation of the facility under the renewed license is likely to have an effect on the marine environment, listed species, or critical habitat in a manner or to an extent not previously considered for ESA section 7 purposes. Please provide a detailed explanation for your determination.

My staff are available to discuss this issue with you. Please contact Kim Damon-Randall, Acting Assistant Regional Administrator for Protected Resources, to arrange a conference call (978-282-8485 or Kimberly.Damon-Randall@noaa.gov). We look forward to continuing to work with you and your staff.

Sincerely, Daniel S. Morris Acting Regional Administrator 2

Enclosure EC: Williams - GCNE Crocker - F/NER3 Balsam, Logan - NRC File code: Sec. 7 NRC Pilgrim Power Station PCTS: I/N ER/2006107083 3

C r L IV-O.)t U..,

ECOLAW P. 0. BOX 380083 CAMBRIDGE, MA 0223.8 CONTACT@ECOLAWBIZ, June 28,2012 BY EMAIL Daniel S. Morris, Acting Regional Administrator.

U.S. Department of the Interior.

National Oceanic and Atmospheric Administration National Marine Fisheries Service Northeut Region 55 Great Republic Drive Gloucester MA- 019302276 Re: Pilgrim NuclearP0ower Station: Request to Relnitate Consultation for Entergy Nuclear Generating Corporation Operating Ueense Renewal

Dear Mr. Morris,

Jones River Watershed Association (JRWA) and Pilgrim Watch (PW) hereby request that the National Marine Fisheries Service (NMFS) reinitiate consultation under Section 7 of the Endangered Species Act, 16 USC § 1536, for the relicensing of the Pilgrim Nuclear Power Station (PNPS). By letter datedMay 17, 2012, NMFS stated it concluded informal consultation with the NRC with a "not likely to adversely alTect" finding for all species undei NMFS jurisdiction, and "no effect" for right whale c-tica habitat.

(Deternination), p. 30. For the reasons stated below, we belicve the Determirition is arbitrary, capricious and an abuse of discretion, and otherwise not in accordance with law.

The content of the Determination demonsuttes NMFS' imperfect understanding of the impacts of Entergy's operations during the relicensing period and ignores ficts about' compliance with the NPDES permit. Under 50 CFR § 402.16(b), consultation must be reinitiated "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." Forest Guardians v. Joharms, 450 F.3d 455 (9th Cir June 13, 2006). CrepaceFound. v.

Pihy, 122 F. Supp. 2d I I10 (D. Haw. June 5, 2000). We herewith provide you with more information documenting that FNPS operations during the relicensing period may affect listed *pvcies and/or critical habitat in a manner and/or to an ex cnt not previously I

considered by NMFS in making the Determination. -This new information requires that consultation be reinitiated pursuant to 50 CFR § 402.16(b).'

1. NMFS conclusions about the "effects of the action" are based on scientific reports for a different operating scenario.

The "effects of the action" are caused by impingement, entrainment, discharge of a thermal plume, and point source and non-point source discharges. All of the conclusions NMFS draws about the effects of the action are invalid because during the relicensing period (2012-2032), PNPS will be operatingat a higherelectricalrating and higher annualcapacity that it was during the periods covered by the scientific studies from which NMFS draws its conclusions.

Power Upgrade and Operating TiMe. The Determination is based on a narrow set of data and models for PNPS based on operating scenarios that existed prior to the 2003 uprate and at a time when PNPS was operating few days of the year. In 2003, Energy increased PNPS's electrical rating to the current 715 MW from 655 MW megawatts electric 2 In addition, during the period covered by the reports the Determination primarily relies on, PNPS average running time was 58%. In recent years, PNPS has been operating at a higher capacity, around 85% to 98.5%. ' Nowhere does the Determination acknowledge or recognize the different operating scenario that will occur during the relicensing period, and the "effects of the action" under this scenario, including the discharge of more water, heated to higher temperatures, even though this issue was identified in PNPS reports..

Excerpts from these reports state as follows:

A-T Committee, #34, 71st meeting, 7/17/89, p. 2, discusses asking the NRC for an "extra 10% powr output in the near future (from 670 to 740 Megawatts)...Pilgrim would draw in more sqawater to maintain the same [delta]T, which may require new circulation pumps. The thermal plume would be concomitantly farther out."

A-T Committee, #46, 83d meeting, 6/13/95, p. 1, (Meeting attended by Boston Edison consultants from ENSR, MRI, including Mike Scherer) "Also, the engineers have considered increasing .the power output of the plan. The Delta-t would stay the same, but flow would increase.by 13%'.

fOnMay 25, 2012, the NRC reissued Entergy's operating license, based on votes taken before the NRC received the Determinatioh:'

2 PNPS EIS, p. 2-4..

From I973 to 1999, the average running time for PNPS was 58%. In 2010,'he annual'capacity factor was 98.5%, and in 2611 it'wis an annual average of 85.5%, and opefated at almost 100% capacity during the hotter months-June through October. The 2011 capacity factors by month are: January-99.3%, Feb.

85.8%, March 95A4%, April 46.8%, May 39.9%, June 99.5%, July 98.9%, August 99.8%, September 98.8%, October 99.6%, November 72.4%, December 87.0%, for an annual average of 85.5%. Enterg.2011 "Annual Radiological Environmental Operating Report for Januaryl through December 31,2011, Table 1.3.1.

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NPD ..Pmi1 The Determination erroneously assumes thgt Entergy's state-federn.

water pollution permits (lst reviewed in 1994) are based on the current electrical rating (715 MW) and on current operating capacity factors, That is not the case-the 1994 water pollution permits are based a 655 MW rating, operating at an annual capacity factor in the range of 58.5%, not the current scenario in which PNPS is running in the 85-110%

range.

2. NMFS conclusions about the "effects of the action" are based an insufficient portrayal of the thermal plume NMFS' conclusions about the effects of the thermal plume are flawed because tde underlying data is outdated and insufficient. Determination, pp. 15- 24. The overarching flaw is that the data NMFS relied on to assess the extent of the plume and its temrperatiue are based on effluent discharges prior to the up-rate to 715 MW and assuimnes lower annual capacity factors (see part 1 above).

Moreover, the two thermal plume reports NMFS relied on are between 16 and 40 years old.

First, NMFS relied on the 1974 MIT study, which focused on characterizing the plhme based on surface water temperatures. Determination p. 15-16. This document is not readily aivailable to the public, is not par of the PNPS EIS record, and appears to be only available as a non-circulating book at the MIT library. If NMFS wants to rely on this source, it should make the document publicly accessible to the public.

The MIT study.is b9sed on a limited numbe' of temperature measurements. While it is impossible to see what the 1974 report really says, since it is not available, it appears to be based on temperature measurements taken in at least July, August, and November, apparently in 1973 or 1974. From January to June 1974, PNPS was shut down.4 Thus, any temperature measurements in July 1974 do not re.flect even the lower operating rates of 30 years ago.

The second report NMFS relies on is the 199nG&MG- d(ffd "b-tton

.o m-W wte-.

temperature measurements to characterize the benthic thermal plume and validate mathematical models to predict bottom plume characteristics). Determination p. 16.

NMFS use of this 17-year-old 1995 EG&G study is unreasonable. It is not based on the operating scenario that Entergy proposes for the relicensing period. Moreover, in the.

EG&G report, only 2.5 days of data are used, not the 6 weeks of:study design because Pilgrim thut.down unexpectedly dutingthe data collection period. The study itself describes its limited utility:

§ 4.1 "The study was cut short by shut down of PNPS firm,29 of August to 29 of.

November 1994; limiting detailed observation of the plume to a single weather regime....

4 Boston Edison's Semi Annual Report No.4, for period Jan. 3974 to June 1974 states that "during this reporting period, the Pilgrim reactor was abut down for refueling and m1nteeance for contested licensing heurings regarding a change in fuel design." Report, Part A..

.3

The measurement of the plume extent therefore rests on a relatively few time series measurements."

§ 42 ,"Due to the short length of the full array measurement period, the foregoing conclusions cannot be applied directly:to assess plume extent or maximum boIn-temperatures under other wind, current, and tide conditions...."

§ 4.3 the "objective.of the study was not achieved.., .

Finally, NMFS relics on the 2000 ENSR study5 , which merely summaries the 1995 EG&G and contains no new field data or models.

3. Use of inaccurate thermal plume data renders all conclusions about Impacts on species, prey, aMd ciitJ!al habitot erroneous.

NMFS conclusions about the effects of PNPS relicensing on Whales;Sea Tulles, and Atlantic Sturgeon (pp. 17-21) are based on th; 1974 MIT study and the EG&G 1995 study, and an inaccurate operating scenario. NMI&S conclusions about Effects to Prey (pp.

22 to 24) from the thermal plume are erroneous for the same reasons. See, e.g., p. 23-claim that benthic area affected is 8.4 acres is based on the 1995 EG&G report; claim that the area that would be used by .atheackturtles*or foraging is "no larger than .91 acres"; claim that the surface area effected is "smaller than i 1.25 acres"; p. 23- claims about distribution of fish species that humpback and fin whales prey upon based on 2000 ENSR report which i4 turn is.based on the 1995 EG&G report; p.. 24-claims about impacts to distribution of copepods based on ENSR 2000 report.

4. Impingement of Listed Species' In this section of the Determination,°NMFS claims that "as a condition of their existing license, Entergy must report to NRC any observations of listed species." Determination

p. 9. There. is no citation or reference given for this statement, therefore it is unreliable.

5. Impingement and Entrainment-Effects on Prey Rigt Whales, The Determination states that 'we expect any effects to foraging right whales to be insignificant." Determination, p.-.12. This conclusion is based.on NMFS evaluation of the effects of relicensing on the right whale's main food supply, copepods, a type of zooplankton which would be'entrained in.PNPS and suffer mortality. The Determination relies primarily on one source for the assessment of mortality to copepods from PNPS, the Bridges and Anderson 1984 study. This study does not reflect the operational scenario that will exist during PNPS relicensing (715 MW, higher capacity factor, and warmer water coming into PNPS). NMFS states, "Entergy reports that studies conducted in 1984 indicate that mortality of entrained zooplankton is approximately 5%

In2000, US EPA contracted with TetraTech to evaluate Entery's 2000 ENSR-report. Entergy and US EPA have withheld this document from the public under aFOIA exemption. JRWA has challenged the agency's refusal to release the document. Until the TetraTech report is provided to the public, neither the NRC nor NMFS can rely on the ENSR report because doing so does not provide a fair and balanced assessment of the ENSR 2000 report.

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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.) What the Bridges and Anderson paper actually says is:

"Entrained zooplankton generally had high survival rates ranging from 95% to 100%

under most operating conditions. However, exposure to heat combined with chlorination resulted in mortality rates of 100% when discharge temperatures exceeded 29 C. [84.2 F]

No attempt was made to identify separately the effects of mechanical damage.".

Under the 1994 NPDES permit, Entergy is allowed to continuously chlorinate each service water system. Permit No. MA 003557, A. I.(aX2). It appears that this chlorinated water is mixed'with the condenser cooling water discharged through discharge point 001-

1. A cursory review of discharge monitoring reports shows that oftLn the discharge temperature at this outlet is above 84.2 F (June 2011, average temperature 98.6 F, July 2010 average temperature 99 F)

6. Atlantic Sturgeon NMFS should consider the June. 1, 2012 report of Atlantic Sturgeon found in the North River, the outlet of which is about 16.6 miles north of Pilgrim in Hanover, Massachusetts.

According to the state, "These fishes are basically poking their head into river mouths, checking things out, migrating around the coasts," said Mike Armstrong, the assistan director of the state Division of Marine Fisheries. "We are definitely hearing more reports of encounters with them," he said.

Read more: http:i/ww.patotledger.com/features/x 1347549919/Womren-ptlJ-sia-foot-stigeon- from-North-River-in-Hanover#ixczA yB3DLPU6

7. Climate change In addition to the specific .inaccuracies and outdated information cited in 1-5* above, new information relating to climate change itself should be reconsidered with regard to NMFS conclusion that "any water tenperature changes would 1e significant enough to affect the conclusions reached by this consultation." 1NMFS states thd following as the basis for this conclusion:

"Assutming that therev is a lineartrend.in increasingwater temnperatýres and decreasing pH, one could anticipate a 0.03-.04*C incr.ease each year,. with an increase in temperature of O.6-0.80 C between now and 2032 and a 0.0030.004 unit drop in pH per year, with° a drop of 0.06-0.08 units between now and 2032." Determination p. 28. NMF. does qot support the unusual claim that "there isa linear trend inzjncreming water temp and decreasing pH" with any reference or data. Moreover, the meaning of the statement is unclear. NMFS should explain whether it is saying temperature and pH are inversely related to eachnoer in a linear way. While its is true that increasing texnperatmre and decreasing pH are inversely related to each other, they.are not related in a linear fashion.

The statement could also be interpreted to mean that temperature and pHare independent 5

of each other but both happen to be linear trends. Science shows, however, that pH is not currently changing nor predicted to change in a linear fashion. At the most fundamental level-pH is a log scale measurement. NMFS own statement that pH will change "0.003 to 0. 004 unit drofp in pHper year" shows the flaws in the statement because the drop described is not a linear change, but an exponential change.

See, EPA information on ocean acidification.

httw://www.epa.gav/¢limatechange/science/futureoa.html ("It is important to note that ocean acidification is not a result of climate change, but is rather a direct consequence of the increased CO2 levels that also cause climate change. Ocean acidification will, however, affect future climate change by causing a decline in the ocean's capacity to absorb increasing atmospheric C02 ([PCC, 2007b).") Decreased pH and increased temperature have some of the same negative impacts on marine Jife, which are cumulative impacts not considered by NMFS.'

Further, we provided information that "preliminaryinformation from the winter of 2011-2012 indicates that Cape Cod Bay water temperatures during the season of right whale residency have been elevated above the 15 year average by 2 - 2.5°C." NMFS should assess the impacts' of the current operating scenario described in part #1 above (as.opposed to the pre-2003, scenario) in light of this new information.

Further, the Determination states, "The temperature of the discharged water is a function, of the temperature of the incoming spawater." Thus, if ocean temperatures rise, and PNPS is taking in warmer water during the relicensing period, it will be discharging water that is also warmer than it was prior to the climate change impacts. This was not considered in the Determination. To theextent NMFS conclusions are based on PNPS operating scenarios prior to the 2003 uprating, and at lower capacity factors, the conclusions about climate change impacts are erroneous.

8. Effects of dredging during the relicensing period are reasonably certain NMFS improperly failed to consider the effects of dredging during the relicensing period.

NMFS gives two reasons why the effects of dredging were not considered; first, it claims no specific plains are available, and second claims a lack of information on the types of dredges, vohtume of material, timing, and duration and type of dredge to be used.

Determination, p. 29. NMFS concludes that the "effects of the dredging are not reasonably certain at this time for us to consider them in this consultation." NMFS further'states, any proposals for future dredging need a permit from the U;.S. Aripy Corps of Engineers "which would tigger the need for a subsequent ESA Section 7 consultation."

Publicly available data'shows that the effects of dredging during the licensing period are reasonably certain.; and therefore should be considered. Dredging was done less in December 2011, ',ndwas the sainm type of activity that had been done in prior years.

This public dati describes the dredging that occurs at PNPS on a regular basis. The PNPS.EIS, p. 2-11, describes the dredging of the intakein 1982 and the "lite 1990s,"

sediment testing, EIS, § 2.2.5.2, and cites to a 1996 Boston Edisdn report prepared for the dedging. EIS,p. 2-1321 Entergy's Environmental Notification Form' #1-4744'and 6

dredging plans filed with the Commonwealth of Massachusetts for the 20.11 dredging activity give the acreage, method of dredging, volume of dredged and overdredged material, and timing of the dredging. See also, Certificate of the Secretary of Energy and Environmental Affairs, dated May 9, 2011, EEA # 14744, referring to dredging in 1982 and between 1997 and 1999. These and other public documents describe all of the things about future dredging that NMFS says "are not reasonably certain at this time" - in fact, future dredging is reasonably certain to mirror past dredging.

Finally, the 2007 PNPS EIS claimed "there are no current plans for future dredging of the discharge canal or the intake.embayment at PNPS." Id. p. 2-12. The credibility of this statement is questionable, as clearly, at the time the EIS was prepared, Entergy was aware of the need for dredging the intake channel in the near future, and certainly during the 20 year relicensing period. By making this statement, Entergy was able to keep dredging during the relicensing period out of the NEPA review process.

NMFS Determination states that PNPS dredging. requires ESA consultation. If this is in fact the case, then it'appears the ESA was violated by in December, 2011 when Entergy dredged without any ESA consultation. We request that NMFS investigate this apparent violation of the ESA.

For all of the above reasons, we request that consultation be reinitiated. We look forward.

to your prompt reply. If you have any questions please contact Meg Sheehan, coll 508 259 9154, meg@ecolaw.biz.

Very truly yours, Signed electronically Jones River Watershed Association Pilgrim Watch By: Margaret E. Sheehan, Esq.

Anne Bingham, Esq.

Cc; Andrew S. Imboden Chief Environmental Review and Guidance Update Branch Division of License Renewal Offlce of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 7