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.
