Holtec Seeks Permit Modification to Allow Discharge; APCC Letter Says Discharge Illegal
[Readers, here is an update on Holtec. I should note that though I am a member of Save Our Bay, the grassroots coalition opposed to discharge, these views are my own as an individual. There will be a March tomorrow, April 15th, from Plymouth Center to Pilgrim; meanwhile, this article will be available for free because it is of essential public interest (Subscriber-only material is en route, I promise); however, if you’d like to support this publication and are in a position to so so, please feel free to sign up for a paid subscription using the “subscribe” buttons below; or, if so inclined, you could leave a tip here, via Paypal.
I deeply appreciate your collective and individual generosity — thank you very kindly. – Ed. ]
(BOSTON) — Holtec, the owners of Pilgrim Nuclear Power Station in Plymouth, have applied to modify their existing permits under the US and Massachusetts Clean Water Acts to permit the discharge of approximately 1.1 million gallons of radioactive and chemically contaminated wastewater into Cape Cod Bay.
The application to change the permit to allow discharge was submitted in a March 31st letter to EPA Environmental Engineer George Papadopolous by Holtec International’s Jean A. Fleming, Vice President for Licensing, Regulatory Affairs, and Probabilistic Safety Analysis.
This actually constitutes a retreat on the part of Holtec, who argued for most of 2022 that the present permit allowed dumping; the EPA was clear it did not. Thus the current attempt to change it, which experienced observers suggest will take between approximately six and 24 months to complete procedurally. Holtec Compliance Manager David Noyes affirmed Holtec will not discharge in violation of their permits at the March 27th meeting of the Nuclear Citizens Decommissioning Advisory Panel in Plymouth.
However, the dumping is plainly contrary to statute, which is to say, illegal; and so far as I understand, permits do not nullify statutes.
( Cape Cod Bay; photo credit — NASA. )
The applicability of Massachusetts statutes to the decommissioning of Pilgrim is explicitly affirmed in the June, 2020, Settlement Agreement signed by Holtec with the Massachusetts Attorney General’s Office in order to settle outstanding litigation between the Commonwealth and the previous owners of the plant, Entergy. That document stipulates that “Holtec shall comply with all applicable environmental and human-health based standards and regulations of the Commonwealth.” (Settlement Agreement, III (10)(l))
Therefore, Massachusetts statutes and regulation apply, including, as James Lampert, retired Partner in the Boston law firm of WilmerHale (formerly Hale & Dorr), has consistently and convincingly argued — arguments which have been echoed by others, including in this publication — the Massachusetts Ocean Sanctuaries Act (M.G.L. c. 132A §§12A-16K and §18). This Act simply forbids the discharge of the water in question. By Holtec’s own representations, they can only filter 90-95% of the pollutants in the water; the radioactive tritium in the water cannot be filtered. There will be pollutants, both chemical and radiological, in the ~1.1 million gallons.
Specifically, the Ocean Sanctuaries Act prohibits, at Section 15(4), “the dumping or discharge of commercial, municipal, domestic or industrial wastes” into any designated Ocean Sanctuary. Note that there is no distinction drawn in the Act between radiological and non-radiological pollutants; rather, “commercial, municipal, domestic or industrial wastes” generally are prohibited from discharge into any Ocean Sanctuary.
Cape Cod Bay, from Brant Rock to Race Point, and including Duxbury, Kingston, and Plymouth Bays, are explicitly defined as a protected Ocean Sanctuary in Section 13(b). Discharge is therefore prohibited.
Mr. Lampert and his wife, Mary Lampert, of Duxbury, have kept vigilant watch over Pilgrim for decades. Both sit on the Massachusetts Nuclear Decommissioning Citizens Advisory Panel (NDCAP), a body created by Massachusetts statute to advise the Governor and the General Court, and to educate the public, regarding the decommissioning of Pilgrim Nuclear Power Station.
On the other side of the Canal, the Association to Preserve Cape Cod (APCC), a prominent environmental non-profit organization headquartered in Dennis, has likewise taken a stance against the proposed discharge by Holtec.
Andrew Gottlieb, APCC’s Executive Director, who was appointed as a member of NDCAP in late 2022, emphatically stated his opposition to discharge in an April 11th statement posted on the organization’s website.
“Disbelief was our first reaction upon hearing that Holtec, the multi-national corporation using public funds to decommission the Pilgrim Nuclear Power Station planned to use Cape Cod Bay as a dumping ground for radioactive waste. Disbelief quickly turned to outrage, and from that came a resolve to use all legal means available to us to protect the bay,” wrote Mr. Gottlieb.
“Although litigious only as a last resort, APCC hired an expert legal team and went to work. The result of several months of legal analysis was recently presented to the administration of Governor Maura Healey for its consideration. APCC has requested that the Commonwealth invoke the state’s authority under the Ocean Sanctuaries Act to stop the discharge of radioactive wastewater from the Pilgrim Nuclear Power Station into Cape Cod Bay by Holtec International. APCC’s analysis demonstrates that the only legal option available to the Commonwealth is to deny the permit application,” he said.
In a deeply researched Feb. 14th letter sent on behalf of the APCC to Secretary of the Executive Office of Energy and Environmental Affairs (EOEEA) Rebecca Tepper, and to Lisa Berry Engler, Director of the Office of Coastal Zone Management (CZM), Attorneys Lisa Goodheart, Dylan Sanders, and Alessandra Wingerter, from the Boston law firm of Sugarman, Rogers, Barshak, & Cohen, P.C., demonstrate that the Ocean Sanctuaries Act plainly prohibits dumping, and urge the relevant state regulatory authority, the CZM, to take action to prevent discharge.
“On behalf of the Association to Preserve Cape Cod (“APCC”), we write to request that the Office of Coastal Zone Management (“CZM”) in particular, and the Executive Office of Energy and Environmental Affairs (“EEA”) in general, exercise the full authority entrusted to your offices under the Commonwealth’s Ocean Sanctuaries Act, G.L. c. 132A, §§ 12A-18 (“OSA”), to stop the proposed discharge of an estimated 1.1 million gallons of radioactive waste from the decommissioned Pilgrim Nuclear Power Station (“PNPS”) into the Cape Cod Bay Ocean Sanctuary. The OSA entrusts ocean sanctuaries to CZM’s ‘care, oversight, and control.’ G.L. c. 132A, § 14,” wrote Attorneys Goodheart, Sanders, and Wingerter. They noted moreover that the CZM should inform MADEP that no permit may be issued for actions that violate the OSA, such as the proposed discharge.
( “A Salt Creek, Cape Cod,” by Margaret Jordan Patterson, 1919; held by the New York Public Library; photo credit — The prints and photographs online catalog of the Miriam and Ira D. Wallach Division of Art, Prints, and Photographs, NYPL. )
In particular, the letter states three specific requests: first, that CZM inform Holtec, via letter, that the Ocean Sanctuaries Act forbids the proposed discharge.
Second, with respect to the permit modification that was applied for two weeks ago on March 31st, Attorneys Goodheart, Sanders, and Wingerter “ask that CZM advise the Massachusetts Department of Environmental Protection (“MassDEP”) that its issuance of any state permit, authorization, or approval of any kind for such a discharge would not be consistent with the OSA. In particular, we ask CZM to notify MassDEP that Holtec’s proposed discharge is not eligible for a new or modified Massachusetts Surface Water Discharge Permit, or for a new or modified state Water Quality Certification….”
Finally, the authors of the letter requested a meeting with both Sec. Tepper and Director Engler.
Attorneys Goodheart, Sanders, and Wingerter underlined the importance of these ocean sanctuaries:
“Sanctuaries are places of refuge, where flora, fauna, and their ecosystems are supposed to be protected from threats. The Ocean Sanctuaries Act provides strong protections— such as an outright prohibition on most discharges – and CZM is entrusted with the authority and responsibility for ensuring that those protections are honored and respected by all state agencies,” wrote Attorneys Goodheart, Sanders, and Wingerter.
They continued:
“If Holtec’s proposed new radioactive discharge into the Cape Cod Bay Ocean Sanctuary is allowed by state agencies, the Bay will become a sanctuary in name only. We ask CZM to exercise the power the Legislature has given to the agency, to the fullest extent possible, to keep the Cape Cod Bay Ocean Sanctuary from becoming a hollow designation.”
Meanwhile, in furtherance of the protection of that ocean sanctuary, starting at 12 noon, tomorrow, April 15th, 2023, at the Plymouth Town Hall, at 26 Court Street, Save Our Bay will lead a walk to Pilgrim Nuclear Power Station, at 600 Rocky Hill Road.
( Opponents of discharge will walk from Plymouth Town Hall to Pilgrim Nuclear Power Station; photo credit — Save Our Bay MA )
Shuttles will be available to pick people up along the route and to return walkers to Town Hall. All are welcome.