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~ September 20,2011

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Ms. Patricia Kurkul, Regional Administrator 


National Oceanic and Atmospheric Administration 


National Marine Fisheries Service 


Northeast Region 


55 Great Republic Drive 


Gloucester, MA 01930-2276 


SUBJECT: 	 NATIONAL MARINE FISHERIES SERVICE LETTER DATED AUGUST 26, 

2011, REGARDING THE ENDANGERED SPECIES ACT, SECTION 7 

CONSULTATION FOR THE PROPOSED LICENSE RENEWAL OF INDIAN 

POINT NUCLEAR GENERATING UNIT NUMBERS 2 AND 3 

Dear Ms. Kurkul: 

I am writing in response to your letter dated August 26, 2011, regarding the draft Biological 

Opinion prepared by the National Marine Fisheries Service (NMFS) for the proposed license 

renewal of Indian Point Nuclear Generating Unit Numbers 2 and 3 (IP2 and IP3). As you are 

aware, the staff of the U.S. Nuclear Regulatory Commission (NRC or the staff) provided 

comments on the draft Biological Opinion bye-mail on September 6, 2011, and indicated that it 

would respond separately to the issues raised in your letter. This letter provides that response; 

in addition, the staff herein requests information from NMFS concerning an additional species 

(Atlantic sturgeon) that was not addressed in your letter dated August 26 or the draft Biological 

Opinion, for which the NRC staff had requested a NMFS response in its December 2010 

Revised Biological Assessment. 

Response to NMFS Letter dated August 26, 2011 

In your letter dated August 26, 2011, you commented on a number of matters, including 1) the 

timing of the NRC's Endangered Species Act (ESA) Section 7 consultation with NMFS in light of 

the ongoing New York State Pollutant Discharge Elimination System permit (SPDES permit) 

proceeding, 2) the timing of the NRC's consultation with NMFS in light of the ongoing Clean 

Water Act Section 401 proceeding (also before New York State), 3) the NRC's legal authority to 

'approve and enforce conditions ...to minimize, monitor, and report incidental take resulting from 

the operation of the facility;' and 4) the NRC's'1egal basis by which it retains discretionary 

involvement or control over the action in order to reinitiate consultation if [a Biological] Opinion is 

finalized and any criteria for initiation are met at a later date:' The staffs views are set forth 

below. 

I. Timing of the NRC's consultation in light of the ongoing SPDES proceeding 

As your staff noted in the draft Biological Opinion, the SPDES permit currently in force for IP2 

and IP3 was issued in 1987. That permit continues in force because the previous owners of IP2 

and IP3 submitted a timely renewal application to the New York State Department of 

Environmental Conservation (NYSDEC). Since that application was submitted, IP2 and IP3, 

along with other Hudson River power plants, developed a draft environmental impact statement 
P. Kurkul 	 - 2 ­

(completed in 1999) and NYSDEC issued a final environmental impact statement (in 2003). 

NYSDEC issued a draft SPDES permit in 2003 and a revised draft permit in 2004. The SPDES 

permit has been, and remains, the subject of adjudication within the State of New York, and a 

final SPDES permit has not yet been issued. As a result, the 1987 permit - which had a stated 

term of five years - has now been in effect for 24 years. The NRC is not a party to the New York 

State litigation, and does not control the SPDES review or the New York adjudicatory 

processes. Because of the protracted litigation over the SPDES permit, the staff cannot 

determine with reasonable certainty when or if a new SPDES permit will enter into force, or what 

the terms of such a permit will be. Nonetheless, the NRC is required to move forward with its 

review of the license renewal application (LRA) for IP2 and IP3. As a result, the NRC has 

entered into consultation with NMFS under the ESA assuming that the existing SPDES permit 

continues in force during the term of a renewed operating license. As I explain in Section IV, 

below, the staff retains the authority to reinitiate consultation should a change to the SPDES 

permit meet the criteria for ESA Section 7 reinitiation. 

II. 	 Timing of the NRC's consultation with NMFS in light of the ongoing New York 

State Section 401 proceeding 

In your letter dated August 26, you noted that "the proposed action seems very uncertain given 

NYSDEC has denied Entergy's request for a Clean Water Act Section 401 Water Quality 

Certification based on its initial and amended application." 

The staff is aware of the uncertainty that exists regarding the Clean Water Act (CWA) Section 

401 Water Quality Certification request. The staff noted, in its December 2010 final 

supplemental environmental impact statement, that NYSDEC had issued a Notice of Denial 

regarding the CWA Section 401 Water Quality Certification on April 2, 2010. The staff also 

noted that the matter is currently subject to a NYSDEC adjudicatory process, the outcome of 

which is uncertain. Further, if the NYSDEC were to grant a Section 401 certification to Entergy, 

NYSDEC could later change or revoke the certification to consider new information or new 

technologies, among other reasons. The NRC is therefore unable to predict with reasonable 

certainty whether a water quality certification will be issued, what the terms of that certification 

might entail, or whether the certification would remain in effect, unchanged, throughout the term 

of a renewed NRC operating license (if renewed licenses were to be issued). As you may be 

aware, Entergy has asserted to the NRC (in a series of letters beginning on June 21 of this 

year) that New York State had waived its Section 401 certification authority because a final 

decision was not completed within one year after Entergy submitted its April 2009 Section 401 

certification request. NYSDEC, however, has asserted that its April 2, 2010, letter formally 

denied certification to Entergy, and that Entergy's appeal from that denial does not alter the 

finality of the State's denial. 

Notwithstanding the uncertain outcome of New York's Section 401 Water Quality adjudication, 

the NRC is required to move forward with its review of the LRA as submitted by Entergy. For 

this reason, the staff has undertaken to review the LRA, to issue a Biological Assessment 

(as later revised), and to enter into consultation with NMFS under the ESA without assuming a 

particular outcome of the Section 401 proceeding. Should the Section 401 certification issue be 

resolved, the staff would consider the effect of that outcome on the IP2 and IP3 operating 

licenses. 
P. Kurkul 	 - 3 ­

III. 	 The NRC's legal authority to "approve and enforce conditions ... to minimize, 

monitor, and report incidental take resulting from the operation of the facility ..." 

The staff agrees with your assertion that the ESA creates different obligations for the NRC than 

does the CWA, and that the NRC's obligations under the ESA continue despite its lack of 

authority over CWA cooling systems issues. As you may know, the NRC has imposed 

requirements on a substantial number of operating nuclear reactors to protect endangered 

species. Our research indicates that NMFS or the U.S. Fish and Wildlife Service (FWS) have 

developed Biological Opinions for 15 nuclear power plants; 11 of these plants hold NRC 

licenses that contain reporting requirements related to the ESA. Further, six of these plants' 

licenses specifically require the licensees to comply with the terms and conditions of a NMFS 

Biological Opinion. Indeed, the NRC staff recently added a license condition at the license 

renewal stage for one of these facilities - Oyster Creek in New Jersey - after consultation with 

your staff. 

In addition to those plants for which NMFS or FWS has developed a Biological Opinion, many 

plants' licenses, including the IP2 and IP3 licenses, contain requirements for licensees to report 

the occurrence or take of a species listed under the ESA. In the NRC's teleconference with 

NMFS on June 20, 2011, the NRC staff indicated that several NRC licenses contain references 

to the terms and conditions of a Biological Opinion. Following another teleconference on June 

22,2011, the NRC staff conveyed to your staff a copy of the existing IP2 and IP3 Appendix B 

technical specifications (part of the existing IP2 and IP3 licenses with which Entergy must 

comply now, and with which Entergy would have to continue to comply in the event the IP2 and 

IP3 licenses are renewed). These technical specifications require Entergy to report to NRC 

"any occurrence of an unusual or important event that indicates or could result in significant 

environmental impact causally related to plant operation," including "unusual mortality or 

occurrence of any species protected by the (ESA]." 

As our consultation with NMFS progresses, the staff looks forward to developing appropriate 

language to ensure that the terms and conditions of NMFS's final Biological Opinion for IP2 and 

IP3 will be enforced. 

IV. 	 The NRC's "legal basis by which it retains discretionary involvement or control 

over the action in order to reinitiate consultation if [a Biological] Opinion is 

finalized and any criteria for initiation are met at a later date." 

The staff's legal authority over NRC licensees does not cease once the NRC has made a 

decision regarding license renewal. If the NRC ultimately issues renewed licenses for IP2 and 

IP3, the NRC will retain oversight of the plants' operations throughout the term of the renewed 

licenses. Further, if the NRC denies the license renewal application, the NRC will continue to 

oversee Entergy's possession of nuclear materials and its clean-up of the IP2 and IP3 site until 

it meets NRC's site release criteria. 

To the extent that the IP2 and IP3 site continues to host NRC-licensed and -regulated activities 

(which would occur even in the absence of a renewed license), the NRC retains legal authority 

to enforce the license requirements or to take such other actions as it may deem to be 

appropriate. Thus, should any of the criteria for the reinitiation of consultation occur, the staff 

would reinitiate consultation, as it has done for other nuclear facilities in the past. As you may 
P. Kurkul -4­

know, the NRC reinitiated ESA Section 7 consultation for the Brunswick plant in North Carolina 

(in 1999), the Crystal River plant in Florida (2001), the Oyster Creek plant in New Jersey (2000 

and 2005), the Salem and Hope Creek plants in New Jersey (1990,1991, and 2010), the St. 

Lucie plant in Florida (2002 and 2005), and the Turkey Point plants in Florida (2011; 

consultation with FWS). Such actions would similarly be taken by the staff for IP2 and IP3, if 

necessary or appropriate. 

Request for Information on Atlantic Sturgeon 

In addition to the matters discussed above, the staff requests your views on a matter that was 

not addressed in your letter of August 26, 2011. Specifically, NIIJIFS has not informed the staff 

of its views regarding effects of IP2 and IP3 operation on the Atlantic sturgeon. In this regard, 

your letter of February 16, 2011 (indicating that formal consultation had begun), noted that 

Atlantic sturgeon might be addressed in a formal conference between NMFS and the NRC. To 

date, the staff has received no communications from NMFS related to this species nor does a 

formal conference appear to have been initiated. The staff therefore requests that NMFS inform 

the NRC as to whether it intends to initiate a formal conference to address the impacts of IP2 

and IP3 operation on the Atlantic sturgeon, or whether this matter should be considered to be 

resolved. 

I appreciate this opportunity to address your concerns, and I look forward to continued 

coordination with you and your staff to protect Federa"y-listed species. I also look forward to 

completing formal consultations and receiving the final Biological Opinion related to shortnose 

sturgeon at IP2 and IP3, and any other ESA Section 7 consultation matters currently open 

between the Northeast Region of NMFS and the NRC. 

Sincerely, 

OJ 9 ''Iv 

David J. Wrona, Chief 

Projects Branch 2 

Division of License Renewal 

Office of Nuclear Reactor Regulation 

Docket Nos. 50-247 and 50-286 

cc: Listserv 
P. Kurkul - 4­

know, the NRC reinitiated ESA Section 7 consultation for the Brunswick plant in North Carolina 

(in 1999), the Crystal River plant in Florida (2001), the Oyster Creek plant in New Jersey (2000 

and 2005), the Salem and Hope Creek plants in New Jersey (1990,1991, and 2010), the St 

Lucie plant in Florida (2002 and 2005), and the Turkey Point plants in Florida (2011; 

consultation with FWS). Such actions would similarly be taken by the staff for IP2 and IP3, if 

necessary or appropriate. 

Request for Information on Atlantic Sturgeon 

In addition to the matters discussed above, the staff requests your views on a matter that was 

not addressed in your letter of August 26, 2011. Specifically, NMFS has not informed the staff 

of its views regarding effects of IP2 and IP3 operation on the Atlantic sturgeon. In this regard, 

your letter of February 16, 2011 (indicating that formal consultation had begun), noted that 

Atlantic sturgeon might be addressed in a formal conference between NMFS and the NRC. To 

date, the staff has received no communications from NMFS related to this species nor does a 

formal conference appear to have been initiated. The staff therefore requests that NMFS inform 

the NRC as to whether it intends to initiate a formal conference to address the impacts of IP2 

and IP3 operation on the Atlantic sturgeon, or whether this matter should be considered to be 

resolved. 

I appreciate this opportunity to address your concerns, and I look forward to continued 

coordination with you and your staff to protect Federally-listed species. I also look forward to 

completing formal consultations and receiving the final Biological Opinion related to shortnose 

sturgeon at IP2 and IP3, and any other ESA Section 7 consultation matters currently open 

between the Northeast Region of NMFS and the NRC. 

Sincerely, 

IRA! 

David J. Wrona, Chief 

Projects Branch 2 

Division of License Renewal 

Office of Nuclear Reactor Regulation 

Docket Nos. 50-247 and 50-286 

cc: Listserv 

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ADAMS Accession No.: ML 11259A018 ~ 

OFFICE LA: DLR/RPOB GS: DLR/RERB PM: DLR/RERB OGC BC: DLR/RPB2 

NAME YEdmonds DLogan AStuyvenberg STurk DWrona

DATE 09/20/2011 09/16/2011 09/16/2011 ----~=

09/19/2011 "'-"'==="--_._.......­ J@aO/2Q1L_ 

OFFICIAL RECORD COpy 
Letter to Patricia Kurkul from David J. Wrona dated September 20,2011 

SUBJECT: 	 NATIONAL MARINE FISHERIES SERVICE LETTER DATED AUGUST 26, 

2011, REGARDING THE ENDANGERED SPECIES ACT, SECTION 7 

CONSULTATION FOR THE PROPOSED LICENSE RENEWAL OF INDIAN 

POINT NUCLEAR GENERATING STATION, UNITS 2 AND 3 

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