EPA Warns Holtec: Dumping Contrary to Permit Is A Crime

Agency Demands Holtec Provide 90 Days Notice of Dumping; Failure to Comply Could Result in Civil and Criminal Punishments; Compliance "Mandatory," Says Agency

(BOSTON) – Holtec is not allowed to dump contaminated wastewater into Cape Cod Bay contrary to its permit, and must provide at least 90 days notification if it decides to pursue discharge, according to a recent letter from the United States Environmental Protection Agency.

In a stern December 5th letter to Holtec Decommissioning International President Kelly Trice, James Chow, Deputy Director of the EPA’s Enforcement and Compliance Assurance Division, was emphatic: Holtec must comply with the law — or face the consequences.

“Among EPA’s duties is the responsibility to ensure compliance with the Act. Representations by  the Company at the November 28, 2022, [Nuclear Decomissioning Citizens Advisory Panel, or NDCAP] meeting appear to contemplate the possibility of  intentional noncompliance with the Act without prior notice,” wrote Chow.

( View from High Pines on Duxbury Beach, looking southeast; Pilgrim Nuclear Power Station is visible in the distance, to the left of the dead cedar tree, behind Saquish Beach and across Plymouth Bay; photo credit — J. Benjamin Cronin.)

The letter came in the wake of concerns about dumping absent a permit expressed by Sen. Ed Markey’s office, including Massachusetts State Director and former Marshfield Representative James Cantwell; from NDCAP Member and long-time Pilgrim watchdog Mary Lampert, of Duxbury; and from long-time activist Diane Turco, of Harwich, Director of Cape Cod Downwinders (full disclosure: I work with both Mrs. Lampert and Mrs. Turco in Save Our Bay, the broad coalition opposed to dumping, and have applauded Mr. Cantwell’s efforts on behalf of Sen. Markey in this matter).

Cantwell, Lampert, and Turco, like the EPA, were disturbed by Holtec Senior Compliance Manager David Noyes’ refusal to commit to abiding by its permits at the Nov. 28th NDCAP Meeting.

“With this letter, EPA is hereby requiring Holtec to provide notification well in advance of any planned discharges of CWA regulated pollutants not authorized under the facility’s 2020 NPDES Permit, including industrial  wastewater stored in the spent fuel pool, dryer/separator pit, torus, and/or reactor cavity,” wrote the EPA’s Chow.

Nor, said Chow, should this be read as in any way allowing discharge — in fact, the contrary was the case.

Moreover, the EPA was emphatic in its warning to Holtec — it is legally compelled to provide this information:

“Compliance with this information request is mandatory and the requirement to provide the requested information is ongoing. Failure to respond timely, fully and truthfully, or to adequately  justify any failure to comply with the requirements set forth herein, constitutes a violation of the federal Clean Water Act,” said Chow.

”In addition to administrative and judicial civil remedies available for  such violations … anyone who knowingly violates … the Act, or who  knowingly submits false material statements or representations in documents or reports required  under the Act is subject to criminal fines, imprisonment or both,” Chow wrote.

Opponents of dumping responded with satisfaction to the news.

“As a concerned citizen and NDCAP member, I am heartened by today’s letter from the EPA to Holtec, reiterating that dumping under the current permit is illegal; that Holtec's failure to commit to compliance with EPA regulations (as requested by Senator Markey) suggests Holtec is considering intentional noncompliance; that any dumping will require 90-day notice; and that Holtec’s failure to comply risks criminal penalty,” said Henrietta Cosentino, of Plymouth.

In Exchange of Letters, EPA Rejects Holtec’s Arguments

The Dec. 5th EPA letter comes as the latest in a series of missives between the agency and Holtec. In a May 24th letter to the EPA from Kelly Trice, the President of Holtec Decommissioning International (original here) Trice asserted that "a radwaste discharge applies with the permit as written."

In a June 17th reply (original here) the EPA's Ken Moraff shot down that argument, stating that "your novel interpretation— through which you attempt to narrow the permit’s prohibition of wastewater discharges to 'untreated' effluent — directly conflicts with the “plain language” of the permit."

Moraff, of the EPA, continued: "The 2020 Permit’s meaning is clear on its face and that meaning is expressly corroborated by the Response to Comments: discharges of pollutants in water stored in the spent fuel pool, dryer/separator pit, torus, or reactor cavity are not authorized by the current NPDES [National Pollution Discharge Elimination System] permit."

Critically, the EPA informed Holtec that if it wants to dump, it needs to apply to modify their permit:

"As EPA has explained, Holtec Pilgrim may choose to seek authorization for such discharges of pollutants; EPA would analyze any such request in accordance with the CWA [Clean Water Act] and NPDES regulations and may, if appropriate, authorize such a discharge via a permit modification or coverage under an applicable general permit,” wrote Moraff.

“Any request must be accompanied by a sufficiently detailed characterization of the types of activities, effluent characteristics (including analytical data for all priority pollutants), treatment, and outfalls that the request for authorization covers," he continued.

On Nov. 2nd, Sen. Markey, Sen. Elizabeth Warren, and Rep. Bill Keating wrote to Holtec again, requesting that it commit publicly to not dumping into the bay. In response, Holtec essentially blustered. In a Nov. 17th reply, Holtec President Kelly Trice simply repeated their intention to dump, absent any response to the EPA’s substantive points:

“We expect that all methods of water treatment will be utilized including treated water release, evaporation, transport for final disposition at an approved offsite facility, or onsite storage,” wrote Trice.

Holtec seems to have, after that letter, become aware (or rather more likely, was made aware by its attorneys) that it needed to apply for a permit modification, as it announced it would do at the Nov. 28th NDCAP, if it wanted to dump.

Yet its primary representative at the meeting, Mr. Noyes, seemed to contemplate dumping. In response to a question about whether Holtec would commit “no discharge prior to resolution of the permit issue,” Noyes replied “I can’t say that.”

When asked if he would commit to providing any warning to the public or other stakeholders prior to dumping, Noyes responded, “I’ll have to get back to you.”

The Dec. 5th letter makes clear to Holtec that if they violate the law by dumping in violation of their permit under the Clean Water Act, or by failing to provide the information requested by the EPA, there will be serious consequences. The letter specifically points to criminal penalties under Section 1319 of the Federal Clean Water Act; for the first offense for a knowing violation of the Act, including permits issued under the Act, the potential penalties include fines of between $5,000 and $50,000 per day they are in violation and a three-year Federal prison term.¹

Nuclear Decommissioning Citizens Advisory Panel meetings are typically held on the fourth Monday of every second month at 6:30 p.m. at Plymouth Town Hall.

1. 33 U.S.C. §1319 (c)(2)(A).