Holtec's Proposed Radioactive Dumping Is Illegal
The Attorney General's Office Should Prepare to Seek an Injunction Preventing Dumping
Readers: I owe you results for the races locally, including those in which we endorsed — the long story made short is that all of those candidates came up short, Mr. Da Silva by only 89 votes, and that deserves an entire article — but in the meantime please accept this discussion of the current situation regarding Holtec and its proposed radioactive dumping.
(Abstract/tl;dr: the proposed radioactive dumping by Holtec into our Bay is illegal, and the AG should ask for an injunction preventing it).
I wanted to offer a bit of an update on where we stand on the Holtec/radioactive dumping issue, and though I am a member of the Steering Committee of Save Our Bay, I am speaking for myself as an individual citizen here.
When I last wrote to to you here about this matter in the middle of the summer, it was when there was still a very good chance of legislation passing that would put a moratorium on Holtec’s proposed dumping of 1.1 million gallons of radioactive wastewater into Cape Cod Bay. For complicated reasons, that legislation never passed.
We therefore move to the Office of the Attorney General of Massachusetts as the best hope to stop the dumping before it happens. Consultation with very knowledgeable counsel – I’m an historian by training, not a lawyer – confirms that the AG’s Office has the legal authority to ask a judge for a preliminary injunction to halt Holtec’s proposed dumping before it happens.
The most important thing to emphasize is that the proposed dumping is illegal.
It is illegal because Holtec signed a Settlement Agreement on Decommissioning with the Massachusetts Attorney General’s Office in June, 2020; one of the stipulations of that agreement -- which is a legal contract -- is that "Holtec shall comply with all applicable environmental and human-health based standards and regulations of the Commonwealth" (Settlement Agreement, Part III, 10 (l) ).
The kind of dumping proposed by Holtec is, in fact, prohibited by the Massachusetts Ocean Sanctuaries Act (M.G.L. Ch. 132A, Secs. 12-16K inclusive, and Sec. 18), which forbids “the dumping or discharge of commercial, municipal, domestic or industrial wastes”* into not only Cape Cod Bay, but also Duxbury, Kingston, and Plymouth Bays; it is likewise prohibited under the United States Clean Water Act (33 USC Ch. 26).
Because the Settlement Agreement that Holtec entered into with the Commonwealth is a contract, it is not subject to Federal preemption;** in other words, Holtec agreed to obey the laws and regulations of the Commonwealth of Massachusetts, and must do so.
Likewise, in a June 17th letter, the United States Environmental Protection Agency roundly rejected Holtec’s spurious claims that its current permit allows this dumping. It does not, and if it wishes to dump, said the EPA, it must expressly seek permission – permission which has not and is unlikely to be granted.
The laws of the Commonwealth and the United States are clear: they forbid Holtec’s proposed invasion of our ancient oceanic commons. The Select Board and Town Counsel have recently defended our rights, and I am hopeful, based upon public statements, that Attorney General Maura Healey's Office is taking the necessary steps to seek a preliminary junction*** forbidding any dumping by Holtec.
I also made these arguments to Boston City Councillor Andrea Campbell, the current Democratic nominee for Attorney General, when she visited Salterie One and Island Creek Oysters in July alongside Rep. Josh S. Cutler (as well as Shannon-Liss Riordan, in Plymouth, before the primary), and my impression is that Councilor Campbell understands extremely well the gravity of the situation. She is also aware that Holtec may well try to dump in the first week of January, 2023, and is cognizant of the actions that, should she be elected, her office will have to take immediately upon assuming office.
There will be a meeting of the Nuclear Decommissioning Citizens Advisory Panel (NDCAP) in Plymouth, on Sept 26th, at Plymouth Town Hall on Court Street, at 6:30 pm. It will be preceded by a rally opposing dumping at 5 p.m.
Thank you for reading, and a happy Friday to all.
* M.G.L. Ch. 132A Sec. 15 (4). Nor does the statute draw any distinction, as Holtec seeks to, between “processed” and “unprocessed” wastewater. It forbids any industrial dumping whatsoever, of which this would be a prima facie instance.
**Because there seems to be some confusion about this issue – according to counsel, the issue is not subject to Federal preemption because the Settlement Agreement is a contract, and governed by contract law. If Holtec had never signed that Settlement Agreement with the AGO in 2020, then yes, this matter would be subject to Federal preemption. But it did sign that document, and it is bound by it.
*** Knowledgeable Counsel is of the view that the tests for injunctive relief, whether in the form of a preliminary injunction or a temporary restraining order, are met in this case: the dumping will cause irreparable harm to our aquaculture, fishing, tourism, hospitality, and real estate sectors, and such harm is very likely in the absence of injunctive relief being granted; the harm to the Commonwealth if it goes forward will be far greater than the harm to Holtec; injunctive relief will be in the public interest; and the case has a high likelihood of success on the merits.