NDCAP To Meet In Plymouth; Will Consider Radioactive Water Issue
Nuclear Decommissioning Citizens Advisory Panel Will Meet Tonight in Plymouth; A Look at Holtec's Rhetorical Retreat
[ Readers: though I am a member of Save Our Bay, the grassroots coalition opposed to dumping, in this article I speak only for myself. - Ed. ]
(PLYMOUTH) — The Massachusetts Nuclear Decommissioning Citizens Advisory Panel (NDCAP), a body created by Massachusetts statute to advise the Governor and the Legislature, and to provide a forum for public comment, on the decommissioning of Pilgrim Nuclear Power Station in Plymouth, will meet this evening, Jan. 23rd, at 6:30 p.m. in Plymouth Town Hall.
A number of issues are on the agenda, from electing a new Chair and Vice Chair to discussing the body’s annual report. All come in the context of Holtec’s proposal, a little over a year ago, to dump approximately 1.1 million gallons of radioactive wastewater into Cape Cod Bay as part of the decommissioning process — a proposal which is illegal under U.S. and Massachusetts statutes and regulations.
( Cape Cod Bay; photo credit — Wikimedia Commons. )
Towns and Elected Officials Unite Against Dumping
Every Town on Cape Cod and Martha’s Vineyard, as well as Duxbury and Scituate, have passed either ballot questions or Town Meeting Articles opposing the proposed illegal dumping, and the Plymouth Select Board has been adamant and unanimous in its opposition.
The entire state and Federal legislative delegations have been likewise staunch in their opposition, including US Sens. Ed Markey (D) and Elizabeth Warren (D), and U.S. Congressman Bill Keating (D-Bourne). Massachusetts Reps. Josh Cutler (D-Duxbury) and Sarah Peake (D-Provincetown) in the Massachusetts House of Representatives, alongside Sen. Su Moran (D-Falmouth) in the Massachusetts Senate, have introduced legislation in the new session with very similar language to a measure that, despite passing both houses of the legislature, was vetoed at the last minute in November by then Gov. Charlie Baker.
The legislation would have established a two-year moratorium on dumping ahead of the report of a Commission designated to study the economic and ecological impact of dumping. One of Holtec’s current lobbyists, Matthew LeBretton, was formerly a leading fundraiser for Governor Baker.
However, with the recent inauguration of Gov. Maura Healey, Holtec finds itself without an ally in the Corner Office. In fact, according to reporting by Eve Zuckoff of WCAI, Healey was adamant at a Jan. 3rd event in Yarmouth:
“We know the work we have to do to build a resilient future. We know we have to stand strong in the face of Holtec and others, and I will hold them to their agreements, which do not allow, by the way, for dumping,” said Healey.
Holtec Seeks to Modify Permit
At the last NDCAP meeting, on Nov. 28th, 2022, David Noyes, Chief Compliance Manager for Holtec, announced that the New Jersey company would seek to amend its current NPDES (National Pollution Discharge Elimination System) permit, issued concurrently by the United States Environmental Protection Agency (EPA) and the Massachusetts Dept. of Environmental Protection (MADEP).
The permit currently does not allow discharge of the water in question; Holtec will seek to modify it so that it does allow discharge.
Holtec argues that the radioactive water would be discharged after a treatment process that, by Holtec’s own representations, only removes 90-95% of the pollutants in the water -- leaving 5-10% of them present (and thus violating Massachusetts statutes, such as the Ocean Sanctuaries Act
Though Holtec has been less than entirely forthcoming in terms of the specific content of the water, the water contains both radiological and non-radiological pollutants. Holtec, for instance, noted at the Nov. 28th NDCAP meeting that the water contains, among other non-radiological pollutants, nickel, copper, and zinc. The EPA does not have jurisdiction over radiological pollutants; the NRC does have jurisdiction over radiological pollutants, but decisions by the U.S. Supreme Court hold that this jurisdiction is far from exclusive, and that states have broad authority to regulate nuclear power stations so long as they do not contradict Federal law or regulations with respect to radiological safety.
( The Nov. 28th, 2022 NDCAP Meeting: A view from the audience; photo credit — J. Benjamin Cronin. )
The ~1.1 million gallons in question also likely contain the radiological pollutant tritium, which, according to the testimony at the Sept. 26th NDCAP meeting from Holtec’s own flown-in expert, Dr. James Conca, a Washington State geochemist with a long history of employment by, and advocacy for, the nuclear industry, cannot be filtered out of the water due to its chemical properties.
Tritium bioaccumulates, meaning it concentrates as it goes up the food chain. According to the National Academies of Sciences, there is no safe level of exposure to radiation.
The Holtec-EPA Letters
The announcement of Holtec’s intent to seek a modified permit constitutes a significant rhetorical and actual retreat from the company’s public position prior to Nov. 28th. Indeed, it represents a de facto admission that its prior argument— that the discharge of the water in question was allowed under the NPDES permit — was simply untenable.
Note that this was not Holtec’s position throughout most of 2022.
In a January 27th letter, Holtec Decommissioning International President Kelly Trice wrote that “the discharges are also allowed by the EPA and the 2019 agreement with the Commonwealth of Massachusetts which set forth strict clean-up standards.”
The EPA rejected this claim in a February 17 letter to Trice. Ken Moraff, Director of the EPA’s Water Division, wrote:
“We want to make very clear that, contrary to the implication in the letter that discharges of spent fuel pool water are allowed by EPA, any such discharge is explicitly prohibited by the company’s Clean Water Act (CWA) discharge permit, unless there are no CWA-regulated pollutants present. While radioactive materials regulated by the Nuclear Regulatory Commission are not considered CWA pollutants, EPA regulates a wide range of other contaminants and the presence of any of those would require further analysis and permitting before any discharge could be allowed by EPA. The permit clearly states that it was not designed to cover such undisclosed discharges associated with decommissioning and that EPA expects that a more detailed characterization of the pollutants in the spent fuel pool water would be required before any discharge would be authorized under the CWA.”
Yet Holtec continued to maintain that the permit in fact allowed dumping. On May 24th, 2022, Mr. Trice replied to the EPA:
“HDI asserts that the three water disposition methods mentioned in our Information Sheet [i.e., dumping, evaporation, and shipping offsite] are available options for removing processed and filtered water from the site,” wrote Trice.
The EPA roundly rejected this interpretation in a June 17th, 2022, letter from Moraff to Trice.
“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,” wrote Mr. Moraff, adding that “your reading of the permit is, in fact, plainly inconsistent with the unambiguous provisions of the permit.”
“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 permit,” continued Moraff.
“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 and NPDES regulations and may, if appropriate, authorize such a discharge via a permit modification or coverage under an applicable general permit. 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,” Moraff said.
Months passed, and Holtec made no response to the June 17th letter from Moraff. This prompted United States Sens. Ed Markey and Elizabeth Warren, and Congressman Bill Keating, to write to Holtec’s Trice on Nov. 2nd, 2022.
“We are concerned that Holtec has not yet publicly responded to EPA’s June 17, 2022 letter, which sought to correct Holtec’s ‘new alternative interpretation’ — that is, its misinterpretation — of the permit, an interpretation that that would purportedly allow for a wastewater discharge without a permit modification. To provide clarity to our offices, local residents, and the many businesses and organizations that rely on Cape Cod Bay’s reputation for clean and safe water, we ask that Holtec confirm publicly as soon as possible that it will not discharge any Pilgrim wastewater without first obtaining the EPA’s authorization and the necessary permit modification,” wrote Markey, Warren, and Keating.
Meanwhile, on October 17th, a meeting took place in Boston between Holtec and officials from the EPA, the Mass. Attorney General’s Office, and United States Senator Ed Markey’s Office. At that meeting, Holtec seems to have become aware of just how seriously these officials took this matter, including the potential for criminal charges should they knowingly violate their permit.
Holtec’s Rhetorical Retreat
Yet Holtec’s representatives, at the Nov. 28th NDCAP Meeting, while willing to announce their intention to modify the permit — and to concede de facto that their prior argument was untenable — were still not prepared to state categorically that they would not discharge the wastewater in question into Cape Cod Bay (any such discharge would be a violation of their permit).
This got the EPA’s attention, in this case, moving beyond Mr. Moraff of the Water Division to James Chow, of the Agency’s Enforcement Division, who wrote a very forceful letter to Holtec’s Trice on Dec. 5, 2022.
“At a November 28, 2022, public meeting, when asked if there would be ‘no discharge prior to resolution of the permit issue,’ Compliance Manager David Noyes said, ‘I can’t say that.’ Later, when asked whether Holtec would provide advanced notice of a discharge Mr. Noyes responded, ‘I’ll have to get back to you.’ Region 1 has already provided Holtec with written notice that ‘discharges of pollutants in water stored in the spent fuel pool, dryer/separator pit, torus, or reactor cavity are not authorized under the current NPDES permit.’ Such unauthorized discharges would be a violation of the Act and could subject the Company and its agents to the full array of enforcement authority that Congress has granted to EPA in Section 309 of the Act, 33 U.S.C. § 1319,” wrote Mr. Chow.
The EPA informed Holtec that it was required to provide 90 days notification if it intended to discharge the radioactive wastewater into the Bay.
“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. In addition to administrative and judicial civil remedies available for such violations, including penalties and authority to compel compliance, under Section 309(c) of the Act, 33 U.S.C. §1319(c), anyone who knowingly violates Section 308 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,” wrote Mr. Chow.
Holtec’s Kelly Trice responded to the EPA’s Chow on Dec. 19th, 2022.
“This letter is being provided to reiterate and affirm Holtec’s intention to conduct all wastewater discharges in compliance with the NPDES permit and all applicable laws,” wrote Mr. Trice.
”As you are aware, on October 17, 2022, Holtec met in Boston with the Environmental Protection Agency (EPA) Region 1 office staff to discuss the PNPS NPDES permit. The meeting provided an opportunity for Holtec to gain a better understanding of EPA’s position regarding the current permit language as it relates to certain wastewater discharges associated with decommissioning activities. At the meeting, we also discussed the process to modify the NPDES permit, as well as the State’s Surface Water Discharge Permit, and the timeline associated with that process. Based on these discussions, Holtec determined that it would pursue a modification to the existing NPDES permit to appropriately address such discharges. Holtec representatives stated this intention publicly at the November 28, 2022, Nuclear Decommissioning Citizens Advisory Panel (NDCAP) meeting,” said Mr. Trice.
“Unfortunately, during this same NDCAP meeting, some statements made by Holtec representatives were misconstrued to imply that Holtec is contemplating intentional noncompliance with the Clean Water Act. This is not true. Please be assured that we will only discharge when in full compliance with all state and federal regulations and permitted requirements,” he said.
“With respect to EPA’s requirement for a 90-day notice prior to unauthorized discharge, Holtec again reiterates its position that no such unauthorized discharges are planned. To the extent that unforeseen circumstances arise in the future, Holtec will endeavor to fully comply with any notification requirement specified in the NPDES permit and/or under applicable law,” said Mr. Trice.
In addition, in the Dec. 19th letter, Holtec’s Trice stated that the water in question would remain on site through the first quarter of 2023, as it is still needed to shield workers from radioactivity during the decommissioning process.
Comments can be sent to the NDCAP Chair and Vice Chair at NDCAP@state.ma.us. The meeting will begin at 6:30 p.m., at Town Hall in Plymouth. A short rally by opponents is, weather-permitting, set to precede the meeting.
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M.G.L. c. 132A §§ 12A-16J and §18. At §15(4) the statute prohibits “the dumping or discharge of commercial, municipal, domestic or industrial wastes” into an Ocean Sanctuary. The Act also defines Cape Cod, Duxbury, Kingston, and Plymouth Bays as Ocean Sanctuaries. The Act is not preempted by Federal law for two reasons: a) the strict Settlement Agreement with Holtec signed by the MA AG; in this contract, Holtec undertakes to follow Massachusetts environmental and human health laws and regulations; contracts are not preempted.
b) Though I am not a lawyer, case law is clear enough that Congress’s designation of the Nuclear Regulatory Commission (NRC) as the primary regulator of radiological safety does not mean it exclusively occupies that field. Indeed, states can, for instance, prohibit child labor in nuclear plants without facing Federal preemption (the example is the Court’s).
Cf. English v. General Elec. Co. :: 496 U.S. 72 (1990)
See HEALTH RISKS FROM EXPOSURE TO LOW LEVELS OF IONIZING RADIATION, BEIR (Biological Effects of Ionizing Radiation) VII PHASE 2 National Academies of Sciences, Engineering, and Medicine, 2006. Washington, DC: The National Academies Press. https://doi.org/10.17226/11340.
In particular, proponents of the argument that dumping is effectively harmless must contend with the following:
"The BEIR VII committee concludes that current scientific evidence is consistent with the hypothesis that there is a linear dose-response relationship between exposure to ionizing radiation and the development of radiation-induced solid cancers in humans.”
In other words, there is no minimal threshold of radiological exposure at which the risk of cancers becomes a problem; though the risks may be low, they remain risks, and the elevated levels of cancer in our communities, especially as one approaches the immediate proximity of Pilgrim Nuclear Power Station, lend credence to that conclusion.
The statute states, at 33 U.S. Code § 1319 (c)(2)(B) that a knowing violation of the permit “shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $100,000 per day of violation, or by imprisonment of not more than 6 years, or by both.”