No Preemption: Massachusetts Laws Apply to Holtec
The Settlement Agreement between MA and Holtec; Evaporation; the Applicability of the Mass. Ocean Sanctuaries Act
[Dear Readers, in the essay below, I make arguments I and others have made before, but that evidently have to be made again: that Federal law does not automatically preempt Massachusetts law with respect to Pilgrim Nuclear Power Station in Plymouth. I should note that I am not a lawyer, but that, as Pitt the Elder put it, one need not be a lawyer to read a statute book or a judicial decision: “we have a code in which every honest man may find it. We have Magna Charta, we have the Statute-book, and we have the Bill of Rights.”1
On the Holtec wastewater issue, readers may recall that MassDEP issued a tentative determination on July 24, 2023, denying Holtec’s application to modify its permit to allow discharge of ~1.1 million gallons of radioactively and chemically contamination into Cape Cod Bay, on the grounds that it violates the Massachusetts Ocean Sanctuaries Act. We are still waiting for a final determination to be issued by the Department.
— Ben Cronin]
In a January 13th article by Fred Thys in The Plymouth Independent on the evaporation of chemically and radioactively contaminated wastewater at Pilgrim Nuclear Power Station in Plymouth, Patrick O’Brien, the spokesperson for Holtec — the New Jersey company which owns and is decommissioning the plant — repeated a claim he has made in the past: that in the case of the disposition of the industrial wastewater at Pilgrim, Federal laws and regulation preempts Massachusetts laws and regulation.
Mr. O’Brien — whom I should note has been very courteous and genial despite our differences of opinion on this matter — was wrong in the past when he made these claims, and he remains wrong today. His assertions to the contrary notwithstanding, there is no preemption in this instance. Massachusetts laws and regulations do in fact apply to Holtec, just as they apply to every inhabitant and every corporation in the Commonwealth.
(A fishing boat and Pilgrim Nuclear Power Station, taken from Saquish Beach, October, 2023; credit — J. Benjamin Cronin.)
The Settlement Agreement
There are a number of reasons that preemption does not apply here: foremost among them is the Settlement Agreement which Holtec signed with the Commonwealth. In addition, four decades of United States case law and precedent show the very opposite of what Mr. O’Brien has again asserted: there is no Federal preemption here. The latter, unfortunately, beyond the scope of this article.
The June, 2020 Settlement Agreement — a legally binding contract — settled existing litigation between Holtec and the Commonwealth. There are two clauses in particular in that document which are of interest to us on the question of preemption.
We will take them in reverse order, looking first at Number 48, in which Holtec agrees not to make Federal preemption arguments:
“48. Validity. No Party to this Agreement (or any person or entity affiliated or related to a Party to this Agreement) shall assert that any provision of this Agreement (or the Agreement itself) is invalid under any federal law or any provision of the U.S. Constitution.”2
As I noted above, I am not a lawyer, but it certainly seems to me that Mr. O’Brien’s repeated public assertions that Federal law preempts Massachusetts law with respect to the industrial wastewater at Pilgrim fly directly in the face of the stipulation contained in No. 48.
Moreover, there is a second significant clause in the Settlement Agreement with respect to preemption, No. 10 (l): “Holtec shall comply with all applicable environmental and human-health based standards and regulations of the Commonwealth[.]”3
Here, what Holtec ceded explicitly in No. 48 — that it wouldn’t make preemption arguments — it cedes implicitly here, by promising to follow Massachusetts environmental and human health “standards and regulations.”
I emailed Mr. O’Brien on January 24th to ask him whether he sees any contradiction between what Holtec agreed to less than four years ago — namely, not to make preemption arguments, and to abide by relevant Massachusetts environmental and human health standards — and his recent public statements that Federal law preempts Massachusetts law in this matter.
I asked Mr. O’Brien: did Holtec and its subsidiaries “agree to III (10)(l) in the June 16, 2020 Settlement Agreement with the Commonwealth of Massachusetts, which reads: “Holtec shall comply with all applicable environmental and human-health based standards and regulations of the Commonwealth”?”
Mr. O’Brien responded that same day, Wednesday the 24th. He wrote: “III 10 (l) means exactly what it says “any APPLICABLE state law”. Those that are federally pre-empted are not applicable[.]”
But this is circular. Holtec is arguing here, on the question of why there is preemption in this instance, that preempted laws are preempted because they are preempted – their conclusion and their premises are the same.
I asked Mr. O’Brien in that same email whether Holtec and its subsidiaries agreed “to VI (48) in the Settlement Agreement, which reads: “Validity. No Party to this Agreement (or any person or entity affiliated or related to a Party to this Agreement) shall assert that any provision of this Agreement (or the Agreement itself) is invalid under any federal law or any provision of the U.S. Constitution”?”
Mr. O’Brien responded: “VI (48) applies to provisions of the agreement (items such as defined decontamination standards and site release thresholds) not all state statutes. Provisions for the liquid discharge of radioactive biproducts [sic] is [is] federally pre-empted (as recognized in the current NPDES Permit) and is not a provision of the agreement.”
But as one perceptive local barrister pointed out to me, if Holtec’s interpretation of No. 48 is correct — and like their interpretation of III (10)(l) above, it relies on us believing that the Settlement Agreement does not say what it plainly says — then there is no need for III(10)(l): if preemption is so reflexively and automatically applied here as Holtec says it is, then there would be no need for a clause in which Holtec agrees that it “shall comply with all applicable environmental and human-health based standards and regulations of the Commonwealth[.]”
Again, I’m not a lawyer, but I don’t think one needs to be a lawyer to recognize basic principles of just conduct; one of these principles is that one keeps the agreements one makes. Holtec entered into the Settlement Agreement freely, and in order to realize many hundreds of millions of dollars in profit. And yet, not even four years later, it is already claiming that the agreement it made somehow does not apply to it now that it is inconvenient. But it does apply, and the plain language of the Settlement Agreement shows that there is no federal preemption here.
Evaporation and the Ocean Sanctuaries Act
This issue is not simply of academic interest. Holtec appears to have chosen, without ever saying so outright, evaporation of the wastewater in question — already down to approximately 900,000 gallons compared to approximately 1.1 million two years ago — as its preferred method of disposal. This is why the Massachusetts Department of Environmental Protection (MassDEP) sent Holtec a letter dated