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Entergy Nuclear Fitzpatrick, LLC

May 17, 2008






Applicant: Entergy Nuclear Fitzpatrick, LLC (Entergy), 268 Lake Road East, Lycoming, NY, 13093, Pete Dietrich, Site Vice President.

Application Numbers: SPDES Permit # 3-3556-00020/00001, SPDES # NY 002 0109, WQC: DEC # 7-3557-00024/00001

Project Description: The New York State Department of Environmental Conservation (DEC or Department) proposes to issue a modified State Pollutant Discharge Elimination System (SPDES) permit for the nuclear power plant (FitzPatrick) located on the southern shore of Lake Ontario in the Town of Scriba, owned and operated by Entergy. Entergy submitted a timely SPDES renewal application to the Department on January 27, 2006, and its existing SPDES permit will continue in place in accordance with the New York State Administrative Procedure Act until the final SPDES permit that is a subject of this proceeding is issued by the Department.

In July 2006, Entergy submitted an application to the Nuclear Regulatory Commission (NRC) to extend its license to operate a nuclear power generation facility. On April 10, 2007, Entergy submitted an application to DEC for a water quality certification (WQC) under 33 U.S.C. §1341, Clean Water Act (CWA) § 401.

DEC Staff determined that the facility does not minimize adverse environmental impact due to impingement and entrainment of aquatic organisms caused by operation of the facility's cooling water intake structure. Staff drafted a SPDES permit containing conditions including, but not limited to, requirements for biological monitoring and other studies and a requirement to implement a fish return system to minimize adverse impacts. In the draft WQC, the Department staff also stated the need for the facility to minimize impingement and entrainment of aquatic species and incorporated draft SPDES permit language regarding this issue. On April 9, 2008, the Department denied the draft WQC, without prejudice, stating that, as a result of Entergy's request for a hearing on the draft SPDES permit, the Department did not have sufficient information to determine whether the facility would meet the State's water quality standards. Entergy filed its request for hearing on the denial on May 9, 2008, consistent with the WQC denial.

Relevant Regulatory Provisions: Environmental Conservation Law (ECL) Article 3, Title 3 (General Functions) and Article 17 (Water Pollution Control), and Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR) Part 621 (Uniform Procedures), Part 624 (Permit Hearing Procedures), Part 704 (Water Quality Criteria, including thermal and intake structures), and Parts 750 et seq. (SPDES); 33 U.S.C. § 1326(b), CWA § 316(b) (cooling water intake structures) and 33 U.S.C. § 1341, CWA § 401 (certification), 6 NYCRR § 608.9 (water quality certifications), and other applicable law.

SEQRA Status: The NRC, acting as lead agency, completed the environmental review of this facility's application, pursuant to the National Environmental Policy Act (NEPA), 43 U.S.C. §§4321 to 4370f. The NRC issued the draft supplemental environmental impact statement (SEIS) for public review on June 8, 2007 and issued the final SEIS on January 18, 2008. The final SEIS is available on-line at:

State Historic Preservation Act (SHPA) Determination: The proposed activity is not subject to review in accordance with SHPA. The permit type is exempt or the activity is being reviewed in accordance with federal historic preservation regulations.

Coastal Management: This project is located in a coastal management area and is subject to the Waterfront Revitalization and Coastal Resources Act, Executive Law, Article 42. Because the facility is subject to review by the NRC for its federal nuclear license, the Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq. (CZMA), and applicable regulations of the New York State Department of State may be invoked by the Department of State.

DEC Staff Position and Document Availability: Department staff has reviewed the SPDES permit application, the WQC application, and other information submitted by the applicant, in addition to information in reports and studies conducted over more than 25 years related to entrainment and impingement at once-through cooling facilities. A tentative determination was made by the Department to approve the SPDES permit application, which was published for public comment on March 3, 2008. A tentative determination was also made by the Department to approve the WQC application, which also was published for public comment on March 3, 2008. On April 9, 2008, the Department informed Entergy of its decision to deny the WQC application. On April 28 and May 8, 2008, Entergy requested that the Department conduct a hearing with respect to the Department's denial of the WQC application.

Contact Person: Christopher Hogan 518-402-9151
NYSDEC, Division of Environmental Permits
625 Broadway, 4th Floor
Albany, NY 12233-1750

The application materials, fact sheet, draft and final SEIS, and the draft SPDES permit, draft WQC and denial are available for review at the following locations during normal business hours between 9:00 AM and 4:00 PM, Monday through Friday.

1) NYSDEC Office of Hearings and Mediation Services, 625 Broadway, 1st Floor, Albany, NY 12233-1550. Contact: Administrative Law Judge Helene G. Goldberger at (518) 402-9003;

2) NYSDEC Division of Environmental Permits, 625 Broadway, Albany, NY 12233-1750. Contact: Christopher Hogan, Project Manager, at (518) 402-9151; and

3) NYSDEC Region 7 Office, 615 Erie Boulevard West, Syracuse, NY 13204-2400. Contact: John Feltman, (315) 426-7440.

These materials are also available at the following public repository:

Penfield Library
7060 State Route 104
Oswego State University of New York
Oswego, NY 13126-3514
Contacts: Barbara Shaffer or Mary Bennett, (315) 312-4267

The draft SPDES permit and fact sheets are also available on the Department's website, at:

The final SEIS is also available at:

Legislative Public Hearing: Legislative hearing sessions to receive unsworn statements from the public on the applications and the draft permits, described above, will be held at 7:00 p.m. on July 15, 2008 at the Town of Scriba Justice Center, 43 Creamery Road, Oswego, New York. All persons, organizations, corporations, or government agencies that may be affected by the proposed project are invited to attend the hearing and to submit oral or written comments. It is not necessary to file comments, register or advise the Department in advance to speak at the legislative hearing. Lengthy statements should be in writing and summarized for oral presentation.

Written statements may also be filed with the Administrative Law Judge if post marked no later than July 15, 2008 and addressed to: The Honorable Helene Goldberger, NYSDEC Office of Hearings and Mediation Services, 625 Broadway, 1st Floor, Albany, New York, 12233-1550. Reasonable time limits may be set for each speaker to afford everyone an opportunity to be heard. Equal weight will be given to both oral and written statements. The hearing location is fully accessible to persons with a mobility impairment. Interpreter services shall be made available to deaf persons at no charge upon written request to the Administrative Law Judge (ALJ), identified above, at least 10 days prior to the hearing, as required by the State Administrative Procedure Act.

Issues Conference: Pursuant to 6 NYCRR § 624.4(b), a pre-adjudicatory issues conference will be held at 10:00 a.m. on July 16, 2008, and as necessary on consecutive days, through July 18, 2008, at the Town of Scriba Justice Center, 43 Creamery Road, Oswego, New York. The purpose of the issues conference is to determine party status for any person who has properly filed a petition (as indicated below) and to narrow and define the scope of issues that will require adjudication. Participation at the issues conference will be limited to Department staff, Entergy representatives, and those persons who filed a timely petition for party status.

Filings for Party Status: Persons seeking to participate in the issues conference and any subsequent adjudicatory hearing must file a petition (a written statement) explaining whether the request is for full party status or amicus status. For the required contents of petitions for party status, see 6 NYCRR § 624.5(b). To determine whether an issue is substantive, see 6 NYCRR § 624.4(c)(2), and to determine whether an issue is significant, see 6 NYCRR § 624.4(c)(3).

All filings for party status must be received by the Department's Office of Hearings and Mediation Services by 5:00 p.m. on July 7, 2008. Please direct this filing to the attention of ALJ Goldberger. Telefaxed petitions will not be accepted. Send copies at the same time and in the same manner to counsel for Department staff: Mark D. Sanza, Esq., Associate Counsel, Division of Legal Affairs, NYSDEC, 625 Broadway, 14th Floor, Albany, NY 12233-1500, telephone: (518) 402-9521; and to counsel for Entergy: Elise N. Zoli, Esq., Goodwin Procter LLP, Exchange Place, Boston, MA 02109, telephone: (617) 570-1000.

James T. McClymonds
Chief Administrative Law Judge

Albany, New York
May 19, 2008

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