October 28, 1998
Dear Sir,
We appreciate the opportunity to comment on the proposed amendment to the Site Certification Agreement for the Satsop Nuclear Project.
The central questions we want to raise with you today are, what will happen to the wildlife mitigation lands around the site that were set aside to compensate the public for the environmental damage caused by the construction at the Satsop Nuclear Plant? And, what agreements, terms and conditions will be placed upon the transfer of the site to Grays Harbor County entities to ensure that the public and environmental protections mandated in the original Site Certification Agreement are maintained? The current Site Certification Agreement for the Satsop site (amendment #2, dated May 12, 1996) addresses mitigation and environmental protection issues in the agreements, terms and conditions laid down for the construction, maintenance and operation of the site as a nuclear power plant facility. You as members of the Energy Facility Site Evaluation Council (EFSEC) are being asked to consider an amendment to this Site Certification Agreement that will eliminate all mention of the nuclear power plants. This would leave a document that covers only WPPSS's proposed combustion turbine project, which would occupy only 20 acres of the approximately 1,500 acre site.
This proposed amendment might seem logical, given that the bulk of the site is being transferred to Grays Harbor County entities. Our concern, however, is that the proposed amendment eliminates most of the agreements, terms and conditions that have been placed upon the site for the protection of the environment and the public health and welfare.
Although we recognize that, after the transfer, Grays Harbor County entities will be responsible for public health, safety and welfare related to activities at the site, we maintain that EFSEC has the power, authority and responsibility to define the terms of the transfer that will address these issues. We ask that the conditions placed upon the transfer of the Satsop site to the Grays Harbor County entities be as protective of the environment and the people as those defined in the original Site Certification Agreement for the Satsop nuclear power plant projects.
Comments on the Environmental Review Process for the SCA amendment:
Under normal circumstances, the public would get a chance to review environmental issues related to the Site Certification amendment as part of the State's Environmental Protection Act (SEPA) process. In this case, however, special legislation was sought and obtained by Grays Harbor County's Satsop Restoration Project. This 1996 law (RCW 80.50.310) exempts EFSEC actions regarding the transfer process from environmental review under SEPA. Frankly, when we found out that the county had sought and obtained a special exemption from environmental review for this transfer, we lost all confidence in their commitment to ensuring that the environment would be protected and the mitigation required for construction of the nuclear site would be continued.
Because of the special exemption provided in RCW 80.50.310, EFSEC has not issued a threshold Determination of Non-significance or required an Environmental Impact Statement under the State Environmental Protection Act (SEPA) for this Site Certification Agreement amendment. However, we do not concede that RCW 80.50.310 eliminates the requirement for a SEPA review. Rather, we feel that such a review is required, despite the statute, by the Council’s overall obligation to protect the environment under RCW 80.50.010(2). Also, the statute attempts to exempt only the site transfer from SEPA review, and does not specify exemption for the Site Certification Agreement amendment process. Nothing, however, relieves EFSEC of its responsibility for evaluating the proposed amendment and transfer agreement with respect to the criteria of WAC 463-36-040 "Amendment review" and WAC 463-36-050 "Environmental impact -Alternatives," and of requiring that the amendment and the transfer agreement be consistent with the original terms and conditions of the Site Certification Agreement, as well as protecting the public health and welfare and the environment. Since a SEPA checklist was not issued, we want to know specifically what kind of environmental review the proposed amendments, and the proposed transfer of the site for alternative use, have undergone, the results of that review, and the conditions that will be imposed upon the transfer agreement to ensure that the intentions of the original Site Certification Agreement are met.
Comments on the Proposed Amendment to the Site Certification Agreement:
The original Site Certification Agreement for the Satsop nuclear site and its amendments provide for agreements, conditions and terms that cover both the construction and operation of the nuclear power plant projects. These agreements, terms and conditions were supposed to ensure that construction and operation would take place in a manner consistent with protecting the environment and the public health and welfare, as well as providing mitigation to compensate the public for the unavoidable environmental damage incurred by construction activities. In fact, under the original agreement, when the decision was made not to complete the nuclear power plant projects, the site was supposed to be completely restored to its original condition, and a plan for this has been already approved and is in place.
Of course the nuclear power plants never became operational. And because of a provision of the special legislation for the site transfer, the original restoration plan will not be executed. We recognize this and are not asking that the site be restored to its original condition. But the fact is that construction did occur. We are reminded of this each time we drive Route 12 and see the tower looming in the Chehalis flood plain. Because of the construction that has occurred, there will always be an obligation to fulfill the agreements, terms and conditions that were placed upon the site to mitigate for this construction.
Article IV, subsection D, paragraph 1, on page 20 of the draft amendment, is deleted. This deletion eliminates the incorporation by reference of the Wildlife Mitigation Plan and its attendant Agreement on Management for Wildlife Mitigation, the Satsop Power Plant Habitat Evaluation Procedure, which defined the amount and types of mitigation required and provided management alternatives, and the Standard Operating Procedures by which the plan was executed. These documents provide mitigation for the construction that has already occurred on the nuclear plants. Worked out between WPPSS and the Washington Department of Fish and Wildlife (WDFW), it was agreed that this plan would provide for approximately 1,100 acres of wildlife habitat and peripheral lands that would be set aside to compensate the public for the environmental destruction that occurred as a result of the construction. Elimination of this mitigation agreement removes the protections placed upon the land, and eliminates the compensation to the public for the habitat, wetlands and watershed that has already been lost. This constitutes a significant environmental impact for the site.
Section E., "Assignment," on page 2 of the Agreement on Management for Wildlife Mitigation Between the State of Washington Department of Fish and Wildlife and the Washington Public Power Supply System dated September 29, 1994, states: "This agreement shall be binding on all successors or assignees." It is clear to us that this means this agreement is binding upon the County when it receives the property in the transfer. By incorporating this document by reference, the original SCA clearly attaches the mitigation plan to the site itself, and not to the nuclear power projects only.
We have heard from EFSEC that the County entities have been "encouraged" to pursue an independent agreement on wildlife habitat mitigation with the Washington Department of Fish and Wildlife. This is being proposed as fulfilling EFSEC's obligation to ensure that the alternative use of the site and the amendment of the Site Certification Agreement are consistent with the original conditions and terms of the Site Certification Agreement. We are told that an agreement is being negotiated but is yet unfinished. We are being asked to accept this unfinished agreement, the terms of which are unknown, in lieu of the well-studied habitat mitigation plan that everyone agreed fulfilled the intent of the original Site Certification Agreement. We are being asked to trust in the good will of the County and the Satsop Restoration Project to protect the public welfare and the environment, when these same entities petitioned the legislature to allow them exemption from the SEPA environmental regulations that would have made the process of assessing their proposal an open, public environmental review. How can we have faith in a plan which they are not willing to submit to public input and comment?
We further note that the Grays Harbor County Board of Commissioners is petitioning to rezone 1,100 acres of the Satsop site as Industrial I-2 (Vidette, Oct. 22, 1998). Obviously, what is uppermost in the County’s mind is not habitat preservation or environmental protection for the mitigation and peripheral lands, but industrial development. We are concerned that the goal of the County entities for any agreement with Washington Fish and Wildlife will be the removal of the protective mitigations so that the habitat lands can be developed as part of their industrial park. This use would not be consistent with the original intent of the Site Certification Agreement, nor is it consistent with protecting the short- and long-term health of the environment. Consequently, we ask that EFSEC use its power and authority to fulfill its responsibility to the citizens of the State of Washington, and state as a term of transfer that the County entities receiving the site shall abide by the current mitigation agreement (Satsop Power Plant Site Wildlife Mitigation Plan, Revision 1; the Agreement on Management for Wildlife Mitigation, dated September 29, 1994, between the Supply System and the Washington Department of Fish and Wildlife; the Satsop Power Plant Habitat Evaluation Procedure Impact Assessment, dated June 28, 1994; and the Satsop Power Plant Wildlife Mitigation Plan, Standard Operating Procedures as approved by the Council in Resolution No. 275) under the oversight of WDFW for as long as the site remains unrestored, meaning for as long as the buildings and infrastructure are not demolished and the site not returned to its original condition.
After examining the draft of the proposed amendment to the Site Certification Agreement (SCA), we have additional detailed comments on various points:
On page 1, paragraph 2 of the draft amendment of the Site Certification Agreement, a statement has been added that "… the Governor approved Amendment No. 3 which removed the terms and conditions for Nuclear Projects No.3 and No.5 (WNP-3 and WNP-5), but retained the terms and conditions for the Satsop Combustion Turbine Project." Is it the case that, as it appears, this blanket statement eliminates all obligation to fulfill the terms and conditions originally set upon the construction which occurred at the site? If so, we point out that the construction itself is still there, and elimination of the terms and conditions on that construction does not agree with the original intent of the Site Certification Agreement.
On page 1, paragraph 3, a sentence has been added: "The balance of the site has been transferred to a political subdivision(s) of the Grays Harbor County to pursue economic development activity pursuant to county ordinances and RCW 80.50.300." We argue that, RCW 80.50.300 notwithstanding, “economic development” cannot be construed as a “restoration activity” at the site, and certainly does not fulfill the requirement as intended by the original Site Certification Agreement. As discussed above, we are not arguing for a full restoration of the site. We have plenty of questions and concerns but no basic objection to the County making use of the 400+ acres of developed land at the site. We insist, however, that some official recognition remain that construction on WNP-3 and WNP-5 did occur, that there were environmental impacts due to this fact, and that the mitigation agreements and terms of construction and maintenance for the site should remain in place for as long as the site is not restored to its original condition.
On page 2, Article 1 "Site Certification" Section B "Site Certification", Paragraph 2 currently states that "The Supply System hereby agrees to construct and operate WNP-3 and WNP-5 on the above described site subject to the terms and conditions of this Site Certification Agreement." In the proposed amendment, this paragraph is deleted, thus eliminating the obligation to follow the terms and conditions of the Site Certification Agreement, even though construction has already occurred. Without specific provision for those terms and conditions to be in force with respect to the construction that has occurred, we ask that this deletion not be allowed.
We have concerns that arise out of the fact that the draft of the amended Site Certification Agreement refers to attached documents which have not been amended. This leads to a final document that is confusing and contradictory. These inconsistencies should be addressed before any amendment is approved, and should have been addressed prior to a public meeting, so that the public could comment upon the proper, completed document. For example:
Page 2, Article 1 "Site Certification", Section A. "Site Description", paragraph 1 has been amended to eliminate the nuclear power plant project from the description, leaving only the Combustion Turbine project, which is supposed to take up ~20 acres, exclusive of the natural gas pipeline. Yet, this paragraph retains and refers for more details to Attachment 1, "Site Legal Description" of the original Site Certification Agreement. This attachment provides a detailed legal description of the entire site, not just the Combustion Turbine project property, and is therefore in conflict with the draft amendment of the Site Certification Agreement.
Of greater concern, Article IV "Operation of the Project", Section A "Water Withdrawal", paragraph 1, subsection a, on page 17, is deleted. This paragraph provided the authorization for the Supply System to withdraw up to 80 cfs from the Chehalis River through the Ranney wells. Specifically, sub-subsections ii. and iii. are deleted, which authorized the 70.5 cfs that would have provided water to the WNP-3 and WNP-5 nuclear power plant operation and restoration, while sub-subsection i. has been retained to provide a total of 9.5 cfs of water for the Combustion Turbine project. In addition, paragraphs 7 and 8 of Section A, on page 18, are deleted. These paragraphs specifically relinquish the 70.5 cfs water right for the nuclear power plants, should they not become operational, when site restoration is complete or 5 years after enactment of amendment #2 of the Site Certification Agreement. However, paragraph 1 under section A, article IV refers to Attachment V (now renumbered as Attachment III) "Water Withdrawal Authorization for the Satsop Site" from the original Site Certification Agreement. This attachment, which has not been amended, specifically creates the water rights for up to 80 cfs from the Chehalis River for the nuclear power plants and their restoration activities, but does not eliminate them once the plants are decommissioned, stating only that the water would be used for "restoration activities", with no time limit imposed. Thus, unless the attachment is amended, it appears to us that a 80 cfs water right is created, not relinquished. This is an enormous amount of water to be taken from the Chehalis River, which already suffers from low flow problems. This would create a significant environmental, and potentially socioeconomic, impact. This attachment is in significant contradiction to the apparent purpose of the draft amendment. Please let us know: is it the purpose of the Site Certification Agreement amendment to allow an 80 cfs water right in perpetuity for the Satsop site? Is this the purpose behind RCW 80.50.300, which defines "economic development" to be a restoration activity -- that this enormous water right will survive?
On page 10, Article III "Project Construction", Section C (formerly D) "Surface Run-off and Erosion Control, paragraph 2 currently states, "The Supply System agrees to comply with provisions relating to excavation and erosion control described in Attachment II ("Erosion and Sedimentation Control"), attached hereto and incorporated herein by reference, and will require all contractors to comply therewith." In the proposal, this paragraph is deleted, thus in effect deleting Attachment II. The purpose of Attachment II was to set out specific terms, conditions, and techniques to be used to minimize construction impacts on the site due to erosion. In fact, failure to follow such techniques led to significant damage during the construction phase of the nuclear projects. The ground at the site is typically steep and unstable. Turning over the site for possible construction activities without imposing such protective measures could result in significant environmental impacts and could endanger the health of the stream beds on the site and the rivers into which they drain. Even if no further construction were to occur at the site, the existing erosion control measures, including the storm water retention ponds and ditches, require monitoring and maintenance, and the proper procedures are set out in Attachment II. The EFSEC should require, as a condition of site transfer, that any construction occurring at the site meet or exceed the requirements of Attachment II, and provide for enforcement of these requirements on all contractors and subcontractors.
On pages 11-14 of the draft amendment, Article III "Project Construction," Sections F "Water Intake Systems," G "Discharge System," and H "Barge Slip" are all deleted. These sections dealt with the terms and conditions imposed on the construction and maintenance of these utilities. They included conditions designed to protect the streams and rivers, including times of year when maintenance and construction activities could be performed and what could and could not be done on the river banks. These conditions were to guarantee that any impacts on the streams and rivers on and near the site were minimized. Given the current concern over the loss of salmon runs and salmon habitat, their deletion could result in significant environmental impacts and is inconsistent with the intent of the original Site Certification Agreement. Under the transfer agreement, these utilities will be turned over to Grays Harbor County entities. EFSEC should require as a condition of transfer that they abide by these terms and conditions, or guarantee that those terms and conditions to which they will adhere will offer as much or more protection to the streams and rivers on and near the site.
On page 25, Article VI "Miscellaneous Provisions," Section A "Project Visitation and Recreation,"
paragraph 2 has been deleted: This paragraph stated: "The Supply System agrees to provide replacement of recreational opportunities found by the Council to be adversely affected by project activity. Affected areas may include, but are not limited to, land owned or controlled by Supply System immediately outside the project security area and detached parcels associated with project facilities or routes." With this statement, the original Site Certification Agreement recognized the impact of the project on the general public, and required compensation for the loss of recreational activities and traditional public use of the site. It appears that by this deletion, this obligation is eliminated. If so, what conditions will EFSEC impose on the site transfer to compensate the public for this loss? If the mitigation and peripheral lands are not to be protected, how will lost recreational activities be restored? You can't hike and fish in an industrial park. More concrete and less watershed will not aid flood control or the preservation of salmon habitat. Failure to retain this obligation to the public set forth in the original Site Certification Agreement represents a failure by EFSEC to live up to its responsibility to protect the public welfare and to see to it that alternative use of the site is consistent with the original intent of the Site Certification Agreement.
Discussion and Conclusion:
Our position is that if this amendment of the Satsop Site Certification Agreement is adopted, the door is open for significant adverse environmental impacts on this site. We suspect that the legislation sought by the County and passed in 1996 was an attempt to pre-empt any meaningful analysis of these impacts and remove their discussion from the public forum in which they belong. This project must not go forward without discussion of the environmental impacts.
For EFSEC to simply turn the site over to the Satsop Restoration Project (entities of Grays Harbor County), saying that County ordinances will govern activities at the site, constitutes a failure on its part to fulfill the responsibilities described in WAC 463-36. EFSEC is responsible for seeing to it that any alternative use of a certificated site is consistent with the original Site Certification Agreement. As we have pointed out earlier, this amendment and the vague, undefined terms of the transfer of the site to the County will have results that are not consistent with those original intents. EFSEC is responsible for protecting the short- and long-term health of the public and the environment at the Satsop site. Construction on WNP-3 and WNP-5 did occur at the site. Because the site is not being restored to its original condition and the buildings and infrastructure are not being demolished, the obligation for the fulfillment of the mitigation agreements and terms and conditions of the original Site Certification Agreement continue to exist as well.
The transfer of the Satsop nuclear power plant site from the Washington Public Power Supply System (WPPSS) to entities of Grays Harbor County (the Satsop Restoration Project) for economic development purposes raises many questions and concerns. The idea is one that should be examined carefully, with the full participation of the public. The impact of placing an industrial park at this site raises questions about land use and development impacts, pollution and environmental degradation, and the availability and quality of water in the Chehalis River. It should be remembered that, without the buildings, utilities and infrastructure at the site, which were paid for by the citizens of the entire state of Washington, this would not be a site that one would choose for an industrial park. The utilities and infrastructure were installed at a cost of many millions of dollars, in an area where the predominant land use is for agriculture and timber production. The land upon which the site is built is typically steep and hilly and has been subject to severe erosion problems resulting from earlier construction. The public has a significant interest in this project.
Water rights for the industrial park were mandated by the legislature (RCW 80.50.300 "Unfinished nuclear power projects - Transfer of site restoration responsibilities - Water rights.") at up to 20 cfs, and will be taken from the Chehalis River. The water of the Chehalis River is already significantly over-committed, and suffers from severe problems of low flow during the summer and autumn months, turbidity, low dissolved oxygen, and other water quality problems. Salmon runs are dwindling, and some species are on the verge of being listed as endangered. Many people depend upon the water of the Chehalis -- for agriculture, for salmon and other fish habitat, and for recreation. These uses depend upon a sufficient flow of clean water.
If the buildings and infrastructure at the Satsop site are to be used, and the site not restored to its original condition, what are the plans for its development? Will the proposed industrial park be allowed to grow, and if so, where will additional water come from? How does this park fit into the Grays Harbor County's existing comprehensive plan and zoning laws? What guarantee do the farmers of the area have that development and/or pollution pressures from development and expansion of the park won't eventually drive them out of business? What will be the impact of the industrial park on the quality of life of the area's inhabitants? What are the anticipated impacts from industrial activities near streams and rivers, or from noise, lights, and the additional traffic on local roads? What are the environmental impacts of the proposed park? How are the previous, agreed-upon mitigation rights for the area residents protected?
We are not arguing against the use of the 400+ developed acres as an industrial park, but we would ask that the agreements, terms and conditions of the original Site Certification Agreement, which attach to the site because of the construction activities which have occurred there, be imposed upon all successors to the site, including the Satsop Restoration Project. These agreements include the wildlife habitat mitigation agreement which protects the 1,100 acres of mitigation and peripheral lands surrounding the developed portion of the site. The mitigation lands were set aside to compensate the public for damages that have already occurred. Changing the site ownership does not change that fact, nor does it eliminate the obligation to continue to protect these lands. The 1996 legislation may have mandated that the site transfer occur, and attempted to ensure that there will be no SEPA review, but it does not relieve EFSEC of either its responsibility to the citizens of the State of Washington or its power to fulfill that responsibility.
The power, authority, and responsibilities of the Energy Facility Site Evaluation Council (EFSEC) for the amendment or termination of a Site Certification Agreement (SCA) are set forth in Chapter 463-36 WAC. WAC 463-36-040 “Amendment Review” specifically states that: “In reviewing any proposed amendment, the council shall consider whether the proposal is consistent with (1) The intention of the original SCA; (2) Applicable laws and rules; and (3) The public health, safety, and welfare.” In addition, WAC 463-36-050 “Environmental impact – Alternatives” states that: “In reviewing whether a proposed amendment is consistent with the public health, safety and welfare, the council shall consider the short-term and long-term environmental impacts of the proposal.” As well, the council has the power, under WAC 463-36-060 “Council determinations”, when acting upon a proposed amendment, to “accept the amendment; reject the amendment; or reject the amendment, and state conditions or terms under which the amendment will be reconsidered.” And, in WAC 463-36-100 “Transfer of a site certification agreement” (2) (b): “In submitting a request for an alternative disposition of a certificated site, the certification holder must describe the operational and environmental effects of the alternative use of the site on the certified facility. If the proposed alternative use of the site is inconsistent with the terms and conditions of the original site certification agreement the council may reject the application for alternative use of the site.” Thus, the WAC makes clear that in considering any proposed amendment to a Site Certification Agreement, it is the responsibility of EFSEC to see to it that the amendment is consistent with the original terms and conditions of the SCA, and protects the long- and short-term health of the environment, as well as the public health and welfare, and the council has been given the necessary power and authority to do so.
If the Site Certification Agreement is amended as proposed, and agreements and conditions regarding mitigation for the original construction are thereby rendered null and void, we strongly urge that the EFSEC require as a condition of the amendment that all proposals for an Industrial Park or other uses of the site require a full Environmental Impact Statement and an opportunity for the public to comment. The public has the right to know, and the right to have a say in what happens at the Satsop site. The entire citizenry of the State of Washington, not just of Grays Harbor County. It is the public's facility. The public paid for it. What will the rest of the citizens of the state of Washington get from this transfer? What are they owed?
We appreciate very much this opportunity to comment and look forward to hearing specific answers to the questions and issues we have raised,
Grays Harbor Audubon Society – re: Satsop Site Certification Agreement amendment
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