NDCAP Meets Tonight On Holtec Wastewater
Illegality of Proposed Discharge; Water: Waiting for Results, Circulation Study; Barron v. Kolenda and the Public's Indefeasible Right To Petition and Assembly
(PLYMOUTH) — The Massachusetts Nuclear Decommissioning Citizens Advisory Panel (NDCAP) will meet tonight, May 22nd, at Town Hall in Plymouth, at 6:30 p.m., where it will consider the proposed discharge, contrary to Massachusetts statute, of approximately 1.1 gallons of radioactive wastewater into Cape Cod Bay by Holtec, the owners of Pilgrim Nuclear Power Station.
In particular, NDCAP will consider the question of its annual report to the Governor and the Legislature; there is some disagreement among members of the Panel over that report (see below).
(Looking south from The Gurnet; photo credit — J. Benjamin Cronin.)
Proposed Discharge Plainly Illegal: There Is No Preemption; the Mass. Ocean Sanctuaries Act; Holtec’s Attempt to Modify Permit
Before we examine some of the issues directly before this meeting of the panel, we should note that the proposed discharge is plainly illegal — it is expressly prohibited by Massachusetts statute. I am not a lawyer, but as Pitt the Elder once observed, the statute book is open to all.
Despite what Holtec or other nuclear industry defenders may wish to argue, there is no Federal preemption in this case, meaning, Federal laws do not automatically preempt all state laws, and in this instance, they do not preempt Massachusetts laws whatsoever.
In the course of settling outstanding litigation between the previous owners of Pilgrim, Entergy, and the Commonwealth of Massachusetts, Holtec signed a document called the Settlement Agreement in June, 2020. In this document – which is a contract, and not preempted — Holtec undertook to “comply with all applicable environmental and human-health based standards and regulations of the Commonwealth.”1
This means that Massachusetts statutes are relevant in this matter.
Even if the Settlement Agreement did not exist, there still would be no preemption: on four different occasions, the United States Supreme Court was asked to decide cases in which the nuclear industry argued that Federal preemption meant that states lacked the proper authority to regulate it. On all four occasions, the high court sided with the states, and against the nuclear industry.
The Court, starting with Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983), held that though Congress designated the field of the operation and maintenance of nuclear plants to the Nuclear Regulatory Commission (NRC), a Federal agency, that the several states retain under the U.S. Constitution the legitimate authority to regulate their economies and environments. State laws and regulations are only preempted insofar as they conflict with Federal law.
Since there is no Federal requirement that Holtec discharge this water — Holtec merely wants to, for financial reasons — there is no contradiction between Massachusetts statutes prohibiting dumping and Federal law.
There therefore is — again — no preemption in this instance.
Since Massachusetts statutes and regulations are applicable, it is worth examining them in somewhat greater detail. There are several which prohibit discharge, but perhaps the most directly relevant here is the Ocean Sanctuaries Act (M.G.L. c. 132A §§12-18). This law very plainly prohibits Holtec’s proposed discharge.
At Section 13(b), the Act defines all of Cape Cod Bay, between Race Point and Brant Rock, and explicitly including Duxbury, Kingston, and Plymouth Bays, as a protected ocean sanctuary.
At Section 15(4), the Act prohibits “the dumping or discharge of commercial, municipal, domestic or industrial wastes” into any ocean sanctuary — including Cape Cod Bay. Note that unlike Federal law, this Massachusetts statute draws no distinction between chemical and radiological pollutants; it simply prohibits all “industrial wastes.” Because the water will contain radioactive tritium even after treatment — tritium cannot be filtered — discharging it is illegal from the outset.
Section 18 of the Act, as Attorney Lisa Goodheart and her colleagues have noted in a February, 2023, letter on behalf of the Assocation to Preserve Cape Cod (APCC) to the Massachusetts Office of Coastal Zone Management (CZM), expressly prohibits the Commonwealth from issuing permits for any activities which are prohibited under the act. Discharge of the water is plainly forbidden under Section 15(4) above.
This should be considered when we touch on the matter of permits: Holtec, on March 31st, 2023, applied for a modification to its current NPDES (National Pollution Discharge Elimination System) permit, issued concurrently by the U.S. Environmental Protection Agency (EPA) and the Massachusetts Department of Environmental Protection (MADEP), in order to allow the company to discharge.
For most of 2022, Holtec denied that the NPDES permit actually said what it said, and asserted its unbounded and limitless power to dump in the bay. The EPA very clearly told Holtec in the autumn of 2022 that knowingly violating its NPDES permit was a violation of Federal law, and that under the relevant sections of U.S. Code, would be punishable by time in a Federal jail.
Therefore, Holtec sought to amend its permit to allow discharge of the approximately 1.1 million gallons of radioactive wastewater. Even were the permit not illegal on its face, it would still be prohibited by US EPA and MADEP anti-degradation standards, which essentially say that under the US And Massachusetts Clean Water Acts, you cannot make waters of the United States worse than they already are.
The details of anti-degradation will occupy an entire future article (or articles). Suffice it to say that a plain reading of the anti-degradation standards compels the conclusion that a permit should be denied by relevant Massachusetts regulatory authorities.
Water: Waiting For Testing Results; WHOI Study of Circulation Patterns
Meanwhile, both Holtec and relevant State agencies have remained tight-lipped regarding the results of testing of the water in question which took place earlier this spring. This despite representations made by state officials at the last NDCAP, in late March, that the testing, which would be performed in April, would be available by early May.
No one that this publication is aware of has seen those results.
NDCAPs Members James Lampert, of Duxbury, an attorney and longtime observer of Pilgrim expressed dissatisfaction with the lack of transparency to Jennette Barnes, of WCAI, the Cape and Islands National Public Radio, on May 10th.
Dr. Robert Goldstein, the Healey Administration’s recently appointed Commissioner of the Department of Public Health, emphasized his desire to rebuild trust in the department to The Boston Globe’s Kay Lazar in a May 16th story:
“It matters when we answer the phone, and we are friendly, and we say, ‘Hello,’ and we have the answers,” Dr. Goldstein told The Globe.
“I want to make sure that the people of Massachusetts see us, trust us, and know that we are sharing information with them for their good and for their health,” he said.
The Mass. Department of Public Health has a seat on NDCAP; hopefully Dr. Goldstein’s objectives will begin to be realized out here “in the provinces.”
It is the circulation patterns of water in the bay that are also of great concern in this matter. The Office of United States Senator Ed Markey (D-Mass.) also has been hard at work on the issue, in particular on following up on the commitment that the Senator extracted from Holtec CEO Kris Singh at the May 6th, 2022, Congressional Field Hearing in Plymouth, to provide for adequate scientific study of the potential effects of discharge.
The National Oceanographic and Atmospheric Administration (NOAA) will fund a study of the potential effects of discharge by researchers from Woods Hole Oceanographic Institution (WHOI), according to a recent press release.
“The proposed release of radioactive wastewater into Cape Cod Bay concerns local residents, tourists, commercial and recreational fishermen, and the aquaculture sector alike,” said Matt Charette, WHOI Sea Grant director and a senior scientist in WHOI’s Marine Chemistry Department. “Currently, one cannot predict the path the wastewater would take through the Bay, including major shellfish growing areas, because we still lack a basic understanding of water transport pathways there. This study will provide essential information to regulators as they consider any related permit requests, or any future events that might occur, such as oil spills or harmful algal blooms.”
“I am pleased that the Woods Hole Oceanographic Institution is commissioning an initial study to help communities along Cape Cod Bay better understand the potential impacts of a discharge of radioactive water from the Pilgrim Nuclear Power Station. This is an important first step,” said Senator Ed Markey. “I secured a commitment from Holtec to support an independent study of how the wastewater would interact with Cape Cod Bay, and I have called on them to uphold that commitment to the community, which is rightfully concerned about the potential economic and ecological impacts.”
Holtec faces significant financial headwinds compared with a year ago. According to a presentation made last month by Mr. and Mrs. Lampert to the Duxbury Select Board in their capacity as members of Duxbury Nuclear Advisory Committee (note: I have been appointed to the DNAC, though I did not sit on it in April), the Decommissioning Trust Fund that Holtec relies upon both to fund the decommissioning and to realize profits at the end of decommissioning endured significant losses in last year’s difficult investment environment. Mr. Lampert said the value of the fund decreased by approximately $307 million in 2022.
The Annual Report, Barron v. Kolenda, And The Public’s Indefeasible Rights To Assembly, Petition, And Redress of Grievances
Tonight, NDCAP is set to consider its statutorily required annual report to the Governor and the Legislature. There are two draft reports. One, it appears, dated May 14th, was primarily prepared by NDCAP Member Mary J. Gatslick, of Plymouth, with aid from NDCAP Members David Noyes and Vice Chair Pine Dubois.
Mrs. Gatslick was formerly employed by Holtec, and before that by the prior owners of the plant, Entergy and Boston Edison, respectively. According to her LinkedIn account, she began work at Pilgrim in 1991, working through at least 2020; she is presently retired. Mr. Noyes is the Senior Compliance Manager for Holtec. Ms. Dubois is President and Executive Director of the Jones River Landing.
The May 14th draft, in the view of NDCAP Member James Lampert, was inadequate and did not accurately reflect what had actually occurred at the NDCAP meetings that took place over the course of 2022 (NDCAP meets every other month).
A particular area of contention appears to be the proper role of the public. Throughout the last year, members of the public have expressed dissatisfaction with the level of public participation at NDCAP. The panel, according to my understanding, has been working on, and debating, the annual report in recent weeks. Mr. Lampert suggested including the following paragraph in the annual report:
“Members of the public have frequently said that the panel agenda does not provide enough time for public comment. The usual practice has been to provide a limited amount of time, typically about 20 minutes, occasionally more. But members of the public wishing to speak [have] been limited to only a few minutes, and usually only at the end of an NDCAP meeting. This could be resolved by having longer and more frequent meetings, by providing time for some public comment after each significant presentation to the panel, and giving each individual who wants to speak a much more reasonable length of time to do so.”
Mrs. Gatslick’s rejected this. She let her view be known:
“Recommend that this not be included in the report as written, the public is there to observe the meetings, please review the open meeting regulations and associated guide. If permitted by the chairman of the NDCAP they can speak,” she wrote.
The Constitution of Massachusetts, as interpreted by the Supreme Judicial Court of Massachusetts, is clear: Article 19 of the Massachusetts Declaration of Rights protects not just a citizen’s right to observe public meetings, but to be heard at the same, consistent with time/place/manner restrictions. Indeed, the rights to peaceable assembly and to seek redress of grievances included in Article 19 are broad and affirmative rights; they cut directly against the notion that the role of the public at government meetings is to passively watch, and not actively participate in, our government.
A recent case, handed down in March by the SJC, underscores these rights. In Barron v. Kolenda, a case arising out an ultimately unconstitutional civility code in the Town of Southborough, the Court was emphatic: the role of the public at government meetings is not, contra Mrs. Gatslick, merely as observers; rather, the Massachusetts Constitution contemplates an active, politically engaged, even boisterous, citizenry.
Article 19 of the Massachusetts Declaration of Rights states that “The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.”
Justice Scott L. Kafker, writing for the Court, noted with respect to Article 19 that, “as written, this provision expressly envisions a politically active and engaged, even aggrieved and angry, populace….”2
[T]he text, history, and case law surrounding art. 19 provide for the ‘fullest and freest’ discussion of public matters, including protection of fierce criticism of governmental action and actors, so long as that criticism is done in a peaceable and orderly manner and is consistent with time, place, and manner restrictions. …’Peaceable and orderly’ is not the same as ‘respectful and courteous.’ There was nothing respectful or courteous about the public assemblies of the revolutionary period. There was also much that was rude and personal, especially when it was directed at the representatives of the king and the king himself…..”, wrote Justice Kafker.3
Justice Kafker described the historical context surrounding Article 19:
“The provision also has a distinct, identifiable history and a close connection to public participation in town government that is uniquely informative in this case. ...[A]rt. 19 reflects the lessons and the spirit of the American Revolution. The assembly provision arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts,” wrote Justice Kafker.4
There are colonial precedents for the liberties guaranteed by Article 19. The 1641 Massachusetts Body of Liberties states:
“Every man whether Inhabitant or fforreiner, free or not free shall have libertie to come to any publique Court, Councel, or Towne meeting, and either by speech or writeing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner.”5
For his part, John Adams, the primary architect of the Massachusetts Constitution, spoke at a broader level, wrote Justice Kafker.
Adams “explained that the right of assembly was a most important principle and institution of self-government, as it allowed ‘[every] Man, high and low . . . [to speak his sent[i]ments of public Affairs,’... Town inhabitants, he wrote, ‘are invested with . . . the right to assemble, whenever they are summoned by their selectmen, in their town halls, there to deliberate upon the public affairs of the town.’...’The consequences’ of the right of assembly, in Adams's words, were that "the inhabitants . . . acquired . . . the habit of discussing, of deliberating, and of judging of public affairs,’ and thus, ‘t was in these assemblies of towns . . . that the sentiments of the people were formed . . . and their resolutions were taken from the beginning to the end of the disputes . . . with Great Britain…’”6
Justice Kafker quotes a 19th century decision, the 1854 ruling Commonwealth v. Porter, which held that "‘the fullest and freest discussion’ seems to be ‘sanctioned and encouraged by the admirable passage in the constitution.”7
From all of the above, it is abundantly clear that Article 19 does not in any sense contemplate the members of the public present at these meetings as passive observers; rather, formed in the heat of the revolutionary struggle, in understands the public as active participants in their own government — a government of the people and the public good, not private interests and profit. The Panel should heed the letter and the spirit of court’s decision in Barron v. Kolenda, first and foremost: by listening to the public.
The Nuclear Decommissioning Citizens Advisory Panel meets at 6:30 p.m. tonight, Monday, May 22nd, at Town Hall in Plymouth. It will be broadcast on PACTV and online at https://www.pactv.org/.
Settlement Agreement, III (10)(l). https://www.mass.gov/doc/pilgrim-settlement-agreement/download
Barron v. Kolenda, Massachusetts Supreme Judicial Court (March 7, 2023).
Ibid.
Ibid.
The 1641 Massachusetts Body of Liberties. https://web.archive.org/web/20180601214921/https://www.mass.gov/files/documents/2016/11/te/body-of-liberties-1641.pdf
Barron v. Kolenda.
Ibid.