Baker Vetoes Radioactive Dumping Moratorium

Legislative Efforts Stymied by Governor, as Local Republicans Ask "Et tu, Charlie?"; Dumping Remains Illegal; AGO Statements; Upcoming NDCAP Meeting

(BOSTON) — In a move that has left even fellow Massachusetts Republicans livid, Gov. Charles D. Baker applied a line-item veto to Section 251 of the long-delayed Economic Development Bill, jettisoning the amendment — brought by Sen. Su Moran (D-Falmouth), and supported by the entire local, bipartisan legislative delegation — which would have instituted a two-year moratorium on any dumping of radioactive wastewater into Cape Cod Bay ahead of the report of a Commission tasked with reporting on the economic and environmental consequences of discharging radioactive wastewater.

( Save Our Bay poster advertising the Nov. 28th NDCAP Meeting; photo credit — Save Our Bay. Full disclosure: I serve on the Steering Committee of Save Our Bay. )

Background on the Economic Development Bill

The bill was originally set to be passed in July, as the 2022 legislative session drew to a close. Despite an epic all-night effort, the bill foundered on the issue of tax policy, and a heretofore comparatively obscure 1986 law, M.G.L. Ch. 62F, which returns revenue over a certain level back to the taxpayers as rebates. It was triggered once prior to this year, in 1987. Amid recriminations on all sides, the bill failed to become law last summer.

The Economic Development Act was and is, by all accounts, something Gov. Baker desired to see pass, regarding it as important for his legacy; when the local delegation, in both the Massachusetts House of Representatives (Reps. Cutler, LaNatra, and Muratore, as well as Rep. Peake and other Cape Cod members), and the Senate (especially Sens. Moran, O’Connor, and Cyr, among others), were able to attach language via an amendment that would establish the dumping moratorium and commission, there was hope that it would become law.

Because that did not happen last summer, there was little expectation that a bill would be passed until the next legislative session, in 2023.

That is why it came as such a surprise to hear, on Thursday, Nov. 3rd, that the Economic Development Bill, including Sen. Moran’s amendment (Section 251)¹ establishing the moratorium and the new commission, had been enacted by both Houses of the Legislature.

At this point, there was both widespread expectation on Beacon Hill that the entire bill, including Sec. 251, would pass; and a certain hesitancy among longtime activists and Pilgrim watchdogs to declare a victory on this front until the ink was dry on the Governor’s signature.

As it happened, the Governor signed the bill, but exercised his line item veto power, not only on Sec. 251, but on twenty-three other sections of the Act, mostly relating to tuition retention. 

Regarding Sec. 251, Baker stated: “I am vetoing this section as the commission’s work would be duplicative of, and would interfere with, ongoing work on waste disposal and decommissioning issues by the responsible federal and state agencies.”

Dumping Remains Illegal; AGO Statements

While this is regrettable, my own view (this is my personal view; I sit on the Steering Committee of Save Our Bay, but this is me speaking as an individual here), having consulted with knowledgeable counsel, is that the legal situation remains what it was on Nov. 2nd, 2022: dumping is plainly illegal. In the Settlement Agreement that Holtec signed with the Massachusetts Attorney General in June, 2020, Holtec agreed to “comply with all applicable environmental and human-health based standards and regulations of the Commonwealth[.]”² Those include, among others, the Massachusetts Ocean Sanctuaries Act, which prohibits “the dumping or discharge of commercial, municipal, domestic or industrial wastes”³ into Cape Cod, Duxbury, Kingston, and Plymouth Bays. 

Both Gov-Elect Healey and the Attorney General’s Office have publicly indicated on several occasions that they are prepared to exercise their legal authority to halt Holtec.

On June 13, 2022, while campaigning in Dennis, Maura Healey said that “we are prepared to take action to prevent any violations of Holtec’s state and Federal water discharge permit and any other violations of law.”

“We’ve come a long way on this issue, and I’ll be damn sure, in whatever capacity I serve, that we’re not going to have radioactive waste dumped down here.”

Meanwhile, on three separate occasions, the Attorney General’s Office has affirmed that it is prepared to take action to stop Holtec. In August, 2022, it stated “We are prepared to take action to prevent any violations of Holtec’s state and Federal water discharge permit and any other violations of law.”

On Sept. 26, 2022, it said: “”Our office will do everything possible to hold Holtec accountable and ensure public health and safety throughout the decommissioning process. We [are] prepared to take action to halt any violations of state and Federal water discharge permits.”

On Oct. 5th, 2022, the AGO noted that “the joint Federal and state NPDES permit for the facility expressly prohibits such a discharge and any such discharge thus would be unlawful under the current permit…..”

I think it is appropriate for local officials to seek reassurances from the Attorney General’s Office that it remains prepared to take these actions. With the knowledge that our legal position remains the same as it was on Nov. 2nd, the proper course, I think, is, following the British example during the Second World War, to “keep calm and carry on” with our efforts to halt Holtec.

The next Nuclear Decommissioning Citizens Advisory Panel (NDCAP) is at Plymouth Town Hall on Nov. 28th, 2022, at 6:30 pm, to be preceded by a Save Our Bay rally.

1. The amendment read:
SECTION 251. (a) There shall be a special commission to examine the potential negative environmental and economic impacts caused by the discharge of spent fuel pool water, any materials created as a waste product of nuclear energy from spent fuel pools, including, but not limited to, processed water or any other liquid with elevated levels of radioactivity, including, but not limited to, tritium or boron, associated with the decommissioning of any nuclear power plant, into the waters of the commonwealth. Waters of the commonwealth shall include all waters under the jurisdiction of the division of marine fisheries, including, but not limited to, bays, coastal waters, canals, rivers and streams.

(b) The commission shall consist of the following 13 members: the attorney general or a designee, who shall serve as co-chair; the governor or a designee; the secretary of the executive office of energy and environmental affairs or a designee, who shall serve as co-chair; the senate president or a designee; the speaker of the house of representatives or a designee; the senate minority leader or a designee; the house of representatives minority leader or a designee; the chairs of the joint committee on the environment, natural resources and agriculture or their designees; the commissioner of the department of environmental protection or a designee; the commissioner of the department of public health or a designee; the executive director of the office of travel and tourism or a designee; and the director of the division of marine fisheries or a designee.

(c) The commission shall: (i) examine and investigate the potential environmental and economic impacts, including impacts to consumer perception of the discharge spent fuel wastewater on the fishing, aquaculture, tourism, restaurant industries and other sectors deemed appropriate by the commission; and (ii) make recommendations on measures to mitigate or avoid potential negative impacts on such industries.

(d) The commission shall hold not less than 4 listening sessions, with not less than 1 listening session in the following counties: Dukes, Plymouth, Bristol and Barnstable; provided, however, that upon the completion of its report under this section, the commission shall provide a public presentation in said counties. Not later than November 1, 2024 the commission shall file a report on the results of its study with the clerks of the house of representatives and the senate, the joint committee on environment, natural resources and agriculture, the joint committee on public health, the joint committee on tourism, arts and cultural development, the joint committee on economic development and emerging technologies and the senate and house committees on ways and means.

(e) There shall be no discharge of spent fuel pool water, any materials created as a waste product of nuclear energy from spent fuel pools, including, but not limited to, processed water or any other liquid with elevated levels of radioactivity, including, but not limited to, tritium or boron into the waters of the commonwealth until 90 days after the issuance of the commission’s report.

2. Settlement Agreement, III, 10(l).

3. M.G.L. c. 132A §15 (4).