In May of 2012, The Atlantic States Marine Fisheries Commission (ASMFC) released the new River Herring Benchmark Stock Assessment. This comprehensive report concluded that the east-coastwide population is depleted to near historic lows. The full stock assessment report and state specific stock summaries can be found at www.asmfc.org
River herring are the collective term for two very similar fish species alewife (Alosa pseudoharengus) and blueback herring (Alosa aestivalis). River herring abundance throughout Massachusetts has declined to historical low levels. As a result of these declines the Massachusetts Division of Marine Fisheries (MarineFisheries) established a three-year moratorium on the sale and harvest of river herring throughout state in 2005. In 2008 the moratorium was extended through 2011 because of a lack of recovery of river herring in the Commonwealth. Since January of 2012 the moratorium has been extended under the oversight of ASMFC. In addition, the National Marine Fisheries Service (NMFS) has listed blueback herring and alewife as “species of concern”.
The depletion of river herring throughout the Commonwealth that lead to the moratorium can be seen in the Jones River. From 2005 to 2011 the estimated size of the Jones River herring run was as low as 560 fish in 2008 and only as high as 4,512 fish in 2010. It is impossible to compare this to historic levels since population estimates were not conducted in the past. They didn’t need to be since there was never a concern over lack of fish. River herring were abundant enough to be used as a primary food, bait, and even as fertilizer. Journals from earlier colonial settlers frequently commented on the abundance of herring in the area.
Despite the historically low population levels and regulatory efforts to protect the species, Pilgrim Nuclear Power Plant continues to impinge large numbers of river herring on the screen of their cooling water intake. In fact Alewife is the third highest species impinged at PNPS. Based on annual extrapolated totals PNPS impinges an average of 2,885 river herring per year and have been known to impinge as many as 41,128 river herring in a single year. These excessively high impingement rates have been occurring for decades. This includes well before concerns over the status of the species, but also in very recent years when the vulnerability of the species was well known. For example, in 2010 alewives were the second most impinged species at PNPS at an estimated total of 12,951 river herring. This is more than three times greater than the total number of fish estimated for the entire 2010 Jones River river herring population. This is essentially unregulated. The cooling water intakes are permitted under the National Pollutant Discharge Elimination System (NPDES). These permits are administered by the federal Environmental Protection Agency and in Massachusetts by the Department Environmental Protection. Pilgrim's NPDES permit expired about 16 years ago. EPA and DEP have been allowing the permit to extend, without review, without the explicitly required oversight, and in violation of it's conditions since the 1990's. So you have to ask ask yourself: Where is the "P" in EPA and DEP?
Wednesday, May 30, 2012
Thursday, April 5, 2012
Groups ask state agency to suspend coastal zone approval for Entergy’s Pilgrim reactor
Two groups today asked the state to revoke a 2006 approval for Entergy’s Pilgrim nuclear reactor in Plymouth. Jones River Watershed Association and Pilgrim Watch are asking the Massachusetts Office of Coastal Zone Management (MCZM) to suspend its’ “consistency certification” issued under the federal Coastal Zone Management Act for Pilgrim re-licensing. Entergy applied to the Nuclear Regulatory Commission for a license to continue operating the 40-year old reactor for another 20 years. Before the NRC can act, the state must certify that relicensing will not violate state laws governing activities in the coastal zone.
“For 40 years, Entergy’s once-through cooling system has been taking over 510 million gallons of water a day from Cape Cod Bay into the reactor and sucking in fish, plankton, fish eggs, larvae, and more, and kills them. Another 20 years will cause even more destruction of our coastal zone and our ability to use and enjoy the Bay’s resources for fishing and recreation. We hope the state will suspend the certificate because Entergy is unnecessarily destroying marine life in Cape Cod Bay,” said Pine duBois, Executive Director of JRWA.
The letter to MCZM identifies 10 ways that relicensing will violate the state coastal zone management policy. Many violations are based on new information about killing river herring, possible impacts to dolphins and porpoises, and failing to properly take steps to study the impacts on whales and endangered sea turtles. The groups claim all the information showing the violations is in government agency files, but has been ignored for over a decade.
“We have repeatedly asked the NRC to protect Cape Cod Bay from Entergy’s destructive cooling water operations. The state should be well aware that there is an issue here. Enough is enough. It’s time for action,” said Mary Lampert.
The letter to MCZM is as follows:
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 Certification for Entergy’s 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 Regulatory 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 determination is invalid. Time is of the essence as Entergy’s current NRC operating permit expires June 8, 2012 and relicensing based on MCZM’s 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.
Entergy’s 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 pollutants including chlorine and biocide residuals. Entergy’s 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 time they were made, and others are no longer true.
Entergy’s 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 Biological Monitoring it did do, under the oversight of the Pilgrim Advisory Technical Committee, in violation of Part 8.d.
2. Entergy’s NPDES permit expired in 1996, but has been administratively extended 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. Entergy’s 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 state’s moratorium on the taking of river 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. Entergy’s CZM Report stated there would be “no effects” on endangered and threatened 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 endangered and threatened species from PNPS operations.
6. MCZM’s 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 Act, 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 discharges 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.
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 MCZM’s consistency review was done without the benefit of the results of this consultation.
10. Entergy has not demonstrated compliance with MassDEP’s 2006 cooling water intake structure water quality standards, upheld by the Massachusetts Supreme Judicial Court in April 2011, following 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 thermal 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 applicant to submit “all material relevant to a State’s management program….” 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 consistency 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 or 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 obtained 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 immediately suspend the 2006 Consistency Certification and so notify the NRC, and inform Entergy 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.
Very truly yours,
Jones River Watershed Association, Inc.
By:
Pine duBois, Executive Director
Margaret E. Sheehan, Esq., Volunteer
Anne Bingham, Esq.
Cc: Representative 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
Curt 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 Fisherman’s Association
Trout Unlimited, Massachusetts Chapter
Massachusetts Rivers Alliance
Cape Cod Commission
“For 40 years, Entergy’s once-through cooling system has been taking over 510 million gallons of water a day from Cape Cod Bay into the reactor and sucking in fish, plankton, fish eggs, larvae, and more, and kills them. Another 20 years will cause even more destruction of our coastal zone and our ability to use and enjoy the Bay’s resources for fishing and recreation. We hope the state will suspend the certificate because Entergy is unnecessarily destroying marine life in Cape Cod Bay,” said Pine duBois, Executive Director of JRWA.
The letter to MCZM identifies 10 ways that relicensing will violate the state coastal zone management policy. Many violations are based on new information about killing river herring, possible impacts to dolphins and porpoises, and failing to properly take steps to study the impacts on whales and endangered sea turtles. The groups claim all the information showing the violations is in government agency files, but has been ignored for over a decade.
“We have repeatedly asked the NRC to protect Cape Cod Bay from Entergy’s destructive cooling water operations. The state should be well aware that there is an issue here. Enough is enough. It’s time for action,” said Mary Lampert.
The letter to MCZM is as follows:
*Jones River Watershed Association*Pilgrim Watch*
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 Certification for Entergy’s 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 Regulatory 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 determination is invalid. Time is of the essence as Entergy’s current NRC operating permit expires June 8, 2012 and relicensing based on MCZM’s 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.
Entergy’s 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 pollutants including chlorine and biocide residuals. Entergy’s 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 time they were made, and others are no longer true.
Entergy’s 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 Biological Monitoring it did do, under the oversight of the Pilgrim Advisory Technical Committee, in violation of Part 8.d.
2. Entergy’s NPDES permit expired in 1996, but has been administratively extended 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. Entergy’s 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 state’s moratorium on the taking of river 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. Entergy’s CZM Report stated there would be “no effects” on endangered and threatened 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 endangered and threatened species from PNPS operations.
6. MCZM’s 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 Act, 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 discharges 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.
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 MCZM’s consistency review was done without the benefit of the results of this consultation.
10. Entergy has not demonstrated compliance with MassDEP’s 2006 cooling water intake structure water quality standards, upheld by the Massachusetts Supreme Judicial Court in April 2011, following 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 thermal 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 applicant to submit “all material relevant to a State’s management program….” 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 consistency 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 or 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 obtained 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 immediately suspend the 2006 Consistency Certification and so notify the NRC, and inform Entergy 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.
Very truly yours,
Jones River Watershed Association, Inc.
By:
Pine duBois, Executive Director
Margaret E. Sheehan, Esq., Volunteer
Anne Bingham, Esq.
Cc: Representative 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
Curt 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 Fisherman’s Association
Trout Unlimited, Massachusetts Chapter
Massachusetts Rivers Alliance
Cape Cod Commission
[1] This is not a
comprehensive list of all the ways in which continued operations will violate
MCZM policies, but only examples. More
information is available upon request.
Thursday, March 22, 2012
SPEAK OUT TO HELP PROTECT RIVER HERRING
Voice your support for common sense solutions like having federal observers on all trips by these industrial vessels, requiring them to provide their entire catch to these observers for inspection instead of dumping huge amounts of it unseen, and enacting an overall limit on the amount of river herring they can catch and kill each year. Our fishery managers need to hear from you!
Our local meeting is:
Tuesday, March 27, 7-9 p.m., Plymouth, MA
Radisson Hotel Plymouth Harbor, 180 Water St.
Read more at http://www.herringalliance.org/blog/180-speak-out-to-help-protect-river-herring
Our local meeting is:
Tuesday, March 27, 7-9 p.m., Plymouth, MA
Radisson Hotel Plymouth Harbor, 180 Water St.
Read more at http://www.herringalliance.org/blog/180-speak-out-to-help-protect-river-herring
Friday, March 9, 2012
River Herring and other fish getting 'nuked'
On March 8th JRWA filed a legal challenge against Entergy's operations at Pilgrim Nuclear Plant. One of the significant issues at hand is the number of fish that get sucked into the plant's cooling system. Those of us who follow the annual Jones River herring run are well aware of how imperiled river herring are in the Jones and beyond. River herring are the third most impinged (sucked into the grates) species at Pilgrim. In fact, based on Pilgrim's monitoring data, river herring have been impinged at Pilgrim every year from 1980 to 2010. The total number of river herring impinged in this time period was estimated at 92,001 (68,489 alewife + 23,512 blueback herring). Peak impingement years included:
- 1995 when alewife alone was the greatest single species impinged at the plant and total river herring impinged was 41,128 individuals (39,884 alewife + 1,244 blueback herring)
- 2010 when alewives were the second most impinged species (after Atlantic silversides) at an extrapolated total of 12,680 fish plus an additional 271 blueback herring. This is more than three times greater than the total number of fish estimated for the entire 2010 Jones River river herring population.
You can read more about the legal filing, including testimony from JRWA's Exectutive Director and Ecology Program Director, by clicking here: Cape Cod Bay Watch
Thursday, March 8, 2012
Herring and the Herring Alliance need our help.
Greg Wells of the Herring Alliance was kind enough to come down to our annual meeting and give a great talk about the history, status, and future of river herring. Those of you who attended know how urgent the need is to protect these fish. You also saw the massive task that the Herring Alliance has in front of it in order to affect positive change. This is the big scale stuff that our small organization can't handle on it's own. So we rely on them to do the heavy lifting and they rely on us to back them up. Greg sent us an email today asking for some of that back up. I can't improve much on his wording so I'll just let his note speak for itself. You should feel free to contact them or us if you want more information or just to talk it over. We will be following up as an organization, but support from individuals is also key.
Hi Pine and Alex,
Thought I’d send you an quick update on our herring efforts and let you know about the open comment period and hearings scheduled on Amendment 5 to the Atlantic Herring FMP. Comments on the proposed management options are being accepting now through April 9, and seven public hearings are coming up, including one near you on March 27th. Final decisions on management measures – including protections for river herring – will be made in June.
Leading up to these final decisions, there are a number of ways JRWA and your members can help ensure adequate protections for river herring are voted through and ultimately approved for implementation (hearing attendance/testimony, sign-on letter, op-eds in local papers, encouraging elected officials to weigh in on the process, etc.). I’ll keep you posted as these opportunities come up. In the meantime, please help us spread the word about the upcoming hearings (link below). It would be really great to have you or others in your community at a hearing to let Council members know that groups like yours are putting in a lot of time and effort to restore river herring runs, that we need them to support these efforts by establishing protections for these fish in federal waters. I can provide you some talking points, and if you or anyone is interested I’d be happy to meet up before the main event.
Thanks,
Greg
Tuesday, February 7, 2012
JRWA Letter to NOAA: Re: Endangered Species Act, Section 7 Consultation
February 6, 2012
CERTIFIED MAIL and email
Ms. Mary Colligan
Assistant Regional Administrator
Protected Resources Division
U.S. Department of Commerce
National Ocean and Atmospheric Administration
Fisheries Service
Northeast Regional Office
55 Great Republic Drive
Gloucester MA 01930-2276
Re: Endangered Species Act, Section 7
Consultation:
U.S. Nuclear Regulatory Commission,
Pilgrim Nuclear Power Station, Plymouth,
Massachusetts: Relicensing
Dear Ms. Colligan:
We are writing about the Section 7 consultation by the
National Marine Fisheries Service (NMFS) for the Pilgrim Nuclear Power Station
(PNPS) in Plymouth, Massachusetts. This
consultation is required under the Endangered Species Act (ESA), 16 U.S.C.S. §§
1536 et seq. As you may know, the U.S. Nuclear Regulatory
Commission (NRC) is conducting re-licensing proceedings on PNPS’s operating
license. The license expires on June 8,
2012 and the licensee, Entergy Nuclear Operations, Inc. (Entergy) seeks
permission to continue operating for another 20 years. See, Pilgrim LR Proceeding, 50-293-LR,
06-848-02-LR, NRC Docket No. 50-293. Since it began operation in December, 1972,
PNPS has been using once-through cooling water from Cape Cod Bay and
discharging pollutants to the Bay.
Our research appears to show that the NMFS has yet to concur
with the NRC’s July 2007 “biological assessment” under the ESA, nor has NMFS issued
its own biological opinion or otherwise concluded an informal consultation. The
last relevant communication in the relicensing proceeding record is a January
23, 2007 letter from NMFS stating ‘[c]omments relative to the Section 7
Endangered Species Act consultation will be provided by NMFS Protected
Resources Division under separate cover.” NUREG-1437, Supp. 29, page E-45. [1] We
have been unable to locate a NMFS concurrence letter or any subsequent comments
from NMFS on the NRC biological assessment for PNPS.
2
If NMFS has yet to
make its decision on whether to concur with the NRC’s biological assessment, we
urge the NMFS to withhold concurrence at this time, for the reasons stated
below. If NMFS has concurred, we request
that the concurrence letter be placed in the NRC docket as part of the record
in NRC’s operating relicensing proceeding.
Relevant Law
The ESA regulations at 50 CFR 402.14(a) provide in pertinent
part,
“[e]ach Federal agency shall review its actions at the
earliest possible time to determine whether any action may affect listed species or critical habitat. If such a
determination is made, formal
consultation is required, except as noted in paragraph (b) of this
section.”
The two exceptions in 50 CFR 402.15(b) provide,
“(1) A Federal agency need not initiate formal consultation
if, as a result of the preparation of a biological
assessment under § 402.12 or as a
result of informal consultation with the Service under § 402.13, the
Federal agency determines, with the
written concurrence of the Director, that the proposed action is not likely to adversely affect any listed
species or critical habitat.”
In this case, the Director is the assistant administrator of NMFS. 50 CFR 402.02. (emphasis supplied)
The NRC has determined that ten federally listed endangered or threatened species that are
under full or partial NMFS jurisdiction “may
be affected by continuing operations of PNPS.” NUREG-1437, p. E-73. The NMFS also informed the NRC that Cape Cod
Bay is critical habitat for the Northern right whale. See, NMFS letter to NRC,
June 8, 2006, NUREG-1437, p. E-15. ESA
consultation is also required on this critical habitat in its own right as well
as on the ten listed species. The NRC has not addressed the critical habitat
for Northern right whales in the 2007 biological assessment.
In its 2007 biological assessment, NRC determined that
operation of PNPS for another 20 years “would not have any adverse impact on
any threatened or endangered marine aquatic species.” NUREG-1437, p. E-73. On this conclusion, the NRC is required to
initiate a formal consultation, obtain NMFS concurrence on the 2007 biological
assessment, or otherwise conclude an informal consultation.
Relevant Facts
PNPS is located on Cape Cod Bay and withdraws up to 510
million gallons per day (mgd) of once
through cooling water from the Bay. Under the federal Clean Water Act and its
state
counterpart, PNPS has an NPDES permit. This permit expired on April 29, 1996, but
has been administratively extended by U.S. EPA for 16 years.[2] The state water quality
certification is also expired. In addition to NPDES regulated pollutants, liquids
containing radioactive wastes are also discharged to Cape Cod Bay under NRC regulations.
The NPDES permit allows Entergy to discharge to Cape Cod Bay least 510 mgd of heated
condenser cooling water (daily maximum), 255 mgd of thermal backwash (daily
maximum), 19.4 mgd of service cooling water (monthly average), .06 mgd of make
up water (daily maximum), 4.1 mgd of intake screen wash, and stormwater runoff from
at least four storm drains.
As described by the Massachusetts Supreme Judicial Court in
upholding the state’s authority to regulate the PNPS intake and discharges,
“the environmental impact of these systems is staggering.” Entergy Nuclear Generation Company vs.
Department of Environmental Protection, SJC-10732, 2011 Mass. Lexis 163,
April 11, 2011. The state’s highest court further stated:
“As the sources referenced by the department indicate, the
ecological harms associated with CWISs are well understood. The intake of water
by a CWIS at "a single power plant can kill or injure billions of aquatic
organisms in a single year." Riverkeeper, Inc. v. United States Envtl.
Protection Agency, 475 F.3d 83, 90 (2d Cir. 2007), rev'd in part on other
grounds, Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498, 173 L. Ed.
2d 369 (2009). See Riverkeeper, Inc. v. United States Envtl. Protection
Agency, 358 F.3d 174, 181 (2d Cir. 2004).
In light of the SJC’s ruling, a careful ESA consultation is warranted.
In the PNPS relicensing process, Energy prepared an Environmental
Report (ER) that the NRC used, along with other information, as the basis for
its final environmental impact statement.
NUREG-1437, p. E-53. The NRC
agency staff then produced the 2007 biological assessment based on the final
environmental impact statement.
Entergy has submitted a NPDES renewal application to
EPA. Entergy makes no secret about its
position that it should not be required to change its operating methods to
reduce its environmental impacts on Cape Cod Bay.[3]
The pending NPDES permit renewal process, which Entergy is likely to delay by
challenging any efforts to require operational changes to its water use and
discharge, should not drive NMFS’s consultation process. Entergy itself has argued against a delay in a
similar nuclear power plant relicensing proceeding.[4]
While we are not suggesting that NMFS has delayed its concurrence decision
pending EPA action on the NPDES permit and State Water Quality Certification,
we are simply pointing out Entergy’s position that NMFS should not delay its
decision.
4
Deficiencies in
NRC’s Biological Assessment
It is our view that NMFS concurrence with the NRC’s
biological assessment is unwarranted and would be inconsistent with the
ESA. The assessment relies almost
entirely upon information produced by Entergy’s consultants and ignores
scientifically and commercially available data. 16 U.S.C. 1536(a)(2). The
species and habitat data is clearly not sufficient to make an informed decision
as to the effects of PNPS’s operations. Bob Marshall Alliance v. Watt,
685 F. Supp. 1514, (D. Mt. 1986), aff’d in part and rev’d in part and rev’d in
part on other grounds, 852 F.2d 1223 (9th Cir.) cert. den. 489 U.S. 1066 (1989).[5] The NRC’s biological assessment ignores readily
available data from such organizations as the Whale and Dolphin Conservation
Society (WDCS), Provincetown Center for Coastal Studies, and others that would
provide specific information about the impacts of PNPS on listed species.
Some specific deficiencies in the NRC’s biological
assessment are listed below. This is not
a comprehensive list.
First, the
biological assessment unlawfully limits
the geographical area it covers. The action area for
purposes of the ESA is defined in 50 CFR 402.02 as “all areas to be affected
directly or indirectly by the Federal action and not merely the
immediate area involved in the action.” The NRC has improperly attempted to limit
the scope of its biological assessment to “near PNPS” or “at PNPS.” See e.g.,
E-66, p. E-67, E-68, E-73. One reason
this is improper is highlighted by comments by the Massachusetts Office of
Coastal Zone Management (CZM) on Entergy’s Clean Water Act 316 demonstration
report. Exhibit 1, hereto, June 27, 2000 letter. CZM has stated that the thermal loading from
the PNPS may impact “hundreds of acres of Cape Cod Bay.” Thus, it is this agency’s position that
Entergy’s operations at PNPS affect not just the area “at” or “near” PNPS but
“hundreds of acres of Cape Cod Bay”. While CZM’s comments relate to Entergy’s
CWA compliance, it is also relevant to the assessment of impacts on listed
species and critical habitat in Cape Cod Bay.
CZM stated Entergy’s impingement events may impact “food web
dynamics in the region of Cape Cod Bay near the Entergy-Pilgrim station” and “at
least one modeling study predicts that hundreds of acres of Cape Cod Bay may
increase by one degree Celsius or more due to thermal loading from the
discharge….” It cites “evidence that the
rate of fish impinged by the continuous action of the cooling water intake
structures is thousands to tens of thousands per year….” The NRC has not
addressed how thermal loading, impingement, and entrainment impact the food
web, food supply for the listed species and critical habitat.
Second, the biological assessment
ignores scientific data readily available about
whale activity in the area. For
example, a quick review of available data produced this photo of a federally
endangered fin whale (balaenopter physalus) in front of PNPS. The NRC’s
biological assessment contains a scant half page of “assessment” of the impacts
of PNPS on the fin whale. NUREG-1437, p.
E-71.
5
Photo
courtesy of Whale and Dolphin Conservation Society. A view of PNPS from Cape
Cod Bay is also shown in another photo, which provides a clearer picture of the
four tanks at PNPS also shown in the WDCS photo. From the Boston Globe: http://www.boston.com/business/ticker/2008/11/nuclear_watchdo.html
Third, NRC’s Biological Assessment as to the effects on sea turtles is contradictory
and lacking in specific habitat data. It
relies on stranding data, and on Entergy’s monitoring data. p. E-66. It states, “The applicant has been monitoring
aquatic communities in western Cape Cod Bay since 1969. No Federally endangered or threatened species
have ever been observed in Cape Cod Bay near PNPS, or in the facility intake
and discharge areas, during the duration of these studies.”
The reliance on Entergy’s “monitoring” is totally misplaced
because Entergy’s monitoring covers only fisheries and plankton – not turtles
or whales. Based upon our preliminary
review of the 77 Environmental Monitoring Reports prepared by PNPS in the last
forty years, we have found no requirement that the presence of sea turtles or
whales be documented or reported.[6] Therefore, these reports cannot form the basis
of a reasonable biological assessment regarding sea turtles.
Further, the NRC’s
statement about the absence of listed species near PNPS is at odds with the
statement in the EIS at NUREG-1437, page E-65 that a federally endangered
loggerhead turtle was stranded .63 miles south of PNPS on Priscilla Beach in
2003. Finally, as
NMFS has noted, sea turtles have been impacted by other nuclear power plants on
the East Coast. See, e.g. Nov. 21, 2006
NMFS Biological Opinion for Oyster Creek Nuclear Generating Station.
Fourth,
the NRC biological assessment fails to address the fact that river herring are now considered a candidate
species under the ESA. 76 Fed. Reg. 67652, 67656 (Nov. 2, 2011). About two months ago, NMFS announced a 90-day
finding for a petition to list
6
Alewife (Alosa pseudoharengus) and blueback
herring (Alosa aestivalis), collectively referred to as river
herring, as threatened under the ESA and to designate critical habitat
concurrent with a listing.
76 Fed. Reg. at 67652. NMFS’s
ESA determination on river herring is due by August 5, 2011.[7]
According to the NRC, alewife (Alosa pseudoharengus) “is one of the most commonly impinged species
at PNPS (ENSR 2006). Alewife larvae and
juveniles have been collected in the PNPS entrainment sampling. Juveniles and/or adults have been
consistently collected in the PNPS impingement sampling program. Over the last 25 years (1980 to 2005),
alewives have had the third highest number of individuals impinged at PNPS,
based on annual extrapolated totals (Normandeau 2006b).” NUREG-1437, p. 2-34.
This assessment raises several serious questions. For example, the NRC states that alewife
“spawning occurs in freshwater rivers and streams,” p 2-34, but then says
larvae are found in the entrainment sampling at PNPS. It seems extraordinary that larvae would be
entrained at PNPS’s saltwater intake, several miles from suitable freshwater
habitat in the area such as Eel River and Jones River. This raises the question, which has not been
assessed, as to whether PNPS thermal discharges are disrupting alewife
reproduction.
Entergy’s own records show that during a ten-year period,
1994 to 2004, 46,286 alewife and 16,188 blueback herring were impinged at PNPS,
for a total of 62,474 river herring.
These facts stand in stark contrast to the wholly inaccurate
predictions on the impact to alewife from PNPS in the mid-1970s. In 1975, PNPS’s consultant Stone and Webster
stated that over the 40 year operation of PNPS (1972 to 2012) impingement and entrainment
would result in a loss of 29,410 alewife.[8]
Worse yet, this prediction was based on the operation of two nuclear generating units at PNPS – the second one was not
built. The impingement numbers for alewife (42,286) and blueback herring
(16,188) from 1994 to 2004, a ten year period, were 1.5 times as many alewife
impinged as predicted for the full 40 year time period.
In relation to the total Jones River river herring stock, PNPS’s
impingement and entrainment numbers are significant. In 2004 alone, PNPS impinged 2,192 river
herring (alewife and blueback herring).
In the following year, 2005, the total estimated Jones River river
herring stock was 804 – therefore in 2004, PNPS impinged 2.75 times as many
fish as the entire Jones River river herring run the next year (2005).
Fifth, the NRC improperly excluded potential impacts from
Entergy’s dredging project
from the biological
assessment. The EIS states, “other
activities that may affect marine
aquatic resources in Cape Cod
Bay include periodic maintenance dredging….However,
based on discussions with plant
personnel, there are no plans for dredging of the intake embayment or discharge
canal at PNPS.” NUREG-1437, p. 4-75. This
is inaccurate. In
2012, Entergy is scheduled to
dredge the intake channel. It has
permission from the state
to dredge 43,200 cubic yards of
in-situ sediments plus a potential 11,000 cubic yards of
over dredge.[9] Entergy
requested and received a waiver of the state requirement for an
[1] Unless otherwise noted, citations are to
NRC’s “Generic Environmental Impact Statement for License Renewal of Nuclear
Power Plants, Supplement 29, Regarding Pilgrim Nuclear Power Station, Final
Report, July 2007,” NUREG-1437, and its Appendices. (NUREG-1437). Available on line:
http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/supplement29/index.html;
Vol. 1 ML 071990020; Vol. 2 Appendices ML 071990027.
[2] Jointly issued State Permit No. 359 and Federal Permit No. MA 0003537. The
NPDES permit is based on a daily plant operating capacity of 655 MW. See, Aug.
30, 1994 Modification of NPDES permit.
Following a power optimization overhaul in 2003, Entergy is now
producing 715 MW daily. NUREG-1437, p.
1-8. The annual capacity factor for 2010
was 98.5%, meaning that PNPS operated at 100% capacity for 98.5% of the
time. Entergy “Marine Ecology Study”
No. 77, Annual Report for 2010, p. 2.
This raises questions about whether the annual quantity thermal
discharges and discharges of other pollutants has been higher in recent years,
including 2010, given the increased annual operating capacity.
[3] See, e.g., ENSR and Entergy
Corp., “Application of a Comprehensive Framework for Assessing Alternative
Cooling Water Intake Structure Technologies Under 316b”,
http://www.gunderboom.com/PDFfiles/ENSR%20Technical%20Paper.pdf
[4] Letter from Goodwin Proctor
to NRC, Sept. 6, 2011 on Indian Point reactors.
http://pbadupws.nrc.gov/docs/ML1125/ML11257A103.pdf
[5] In this case, the court ruled the Department
of Interior violated ESA by failing to gather species and habitat data
sufficient to make informed biological assessment of effects of oil and gas leasing
in National Forest area, because such failure during agency planning process
creates likelihood of future conflict as development proceeds and, in effect,
gives development priority over endangered species.
[6] The monitoring is done under
Entergy’s NPDES Permit, Paragraphs A.8.b & e, and Attachment A, Paragraph 1.F.
[7] The decision on listing
river herring could be made before the NRC makes its decision on PNPS’ nuclear
plant operating relicensing. The duty
to consult with NMFS under the ESA can be ongoing, and consultation must be
reinitiated under certain circumstances. 50 CFR 402.16. If the listing decision on river herring is
made before June 8, 2012, a new consultation must be initiated.
[8] “316 Demonstration for Pilgrim Nuclear Power
Station, Units 1 and 2, July 1975”, prepared by Stone & Webster Engineering
Corporation, p. 7-4.
[9] See, Massachusetts
Environmental Policy Act Certificate, EEOEA #14744.
GROUPS SAY ENDANGERED SPECIES AT RISK FROM ENTERGY’S PILGRIM STATION
GROUPS SAY ENDANGERED SPECIES AT RISK FROM
ENTERGY’S PILGRIM STATION
Ask federal agency to assess impact on
fish, whale habitat, and rare turtles
Contacts:
Jones River Watershed
Association
Pilgrim Watch
Pine duBois,
781-424-0353
Mary Lampert
Meg Sheehan,
508-259-9154
www.pilgrimwatch.org
Entergy’s Pilgrim nuclear power station on the shores
of Cape Cod Bay in Plymouth, Massachusetts may be impacting endangered species
like the fin whale, loggerhead turtles, the critical habitat for the endangered
Northern right whale, and river herring. In a letter to National Oceanic
and Atmospheric Administration (NOAA), Jones River Watershed Association and
Pilgrim Watch say the federal Nuclear Regulatory Commission (NRC) likely violated
the federal Endangered Species Act in the relicensing process by ignoring
potential impacts to the endangered species and their habitat. Letter available at: http://www.jonesriver.blogspot.com/
Entergy, a Louisiana
based corporation, has a license to operate the Plymouth nuclear plant but it
expires in June 2012. Entergy has asked
the NRC to extend the license for another 20 years. The groups say Entergy’s license should not
be extended until it upgrades the cooling water system that takes water from
Cape Cod Bay and discharges harmful pollution, potentially impacting the
endangered species and their habitat.
“Since 1972, Pilgrim has been taking a half billion gallons a day of sea water from
Cape Cod Bay, running it through the nuclear reactor system to cool it down, and
dumping it back into the Bay. This water
is super heated and polluted. For decades, Entergy has been sucking in
and killing hundreds of thousands of fish and larvae, and millions of fish eggs
and plankton every year with this process. This is an outdated and destructive
method and has created a killing zone in Cape Cod Bay,” said Pine duBois of the
Jones River Watershed Association in Kingston. “Local groups, towns, and
the state are putting time and money into preserving and restoring our rivers
and bays. Entergy is undermining this work with its destructive operating
methods. If Entergy wants to keeping running Pilgrim for another 20
years, it must upgrade the cooling water system to stop this unnecessary
destruction of marine life and properly assess endangered species impacts.” she added.
"Cape Cod Bay is
a national treasure. It is critical habitat for endangered whales and
some of the planet's most endangered turtles migrate through. This year
we've seen unprecedented numbers of dolphins stranded in Cape Cod Bay.
Our laws that protect these species should be rigorously upheld and
actions that jeopardize these species should be thoroughly reviewed,” said Mary
Lampert of Pilgrim Watch. “This is just one more way that Entergy, with
the complicity of the NRC, is evading public scrutiny and federal and state
requirements today, and planning to continue to do so over the next 20 years,”
she added.
###
Tuesday, January 24, 2012
TODAY:
Massachusetts Research and Policy Center representatives will be joined by local environmentalists near the Pilgrim nuclear power plant Tuesday to release a new report which includes data on how nuclear power threatens the Commonwealth's drinking water. The report can be found here (Summary and full report)
The official report will be released on Tuesday, January 24, at 12 p.m. by the Manomet Lobster Pound - almost overlooking Pilgrim Nuclear Power Station - and the press conference will include comments from MASSPIRG's Patrick Nagle, Mackenzie Clark of Environment Massachusetts, Anna Baker of Pilgrim MUST, Mary Lampert of Pilgrim Watch and Pine Dubois from the Jones River Watershed Association.
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