Testing Reveals Pollutants in Pilgrim Wastewater; Discharge Illegal

Tritium and Illegality of Discharge; Fraying Trust; Necessity for Designating Cape Cod Bay an Outstanding Resource Water

[ Readers, while I am a member of the Duxbury Nuclear Advisory Committee, and of Save Our Bay, the views expressed below are my own as an individual citizen.]

(PLYMOUTH) — Testing results recently made public by the Massachusetts Department of Environmental Protection (MADEP) and the Massachusetts Department of Public Health (DPH) confirm what has been long suspected — that the approximately 1.1 million gallons of wastewater which Holtec is seeking a permit to discharge into Cape Cod Bay contains both chemical and radiological pollutants, including tritium, a radioactive isotope of hydrogen that cannot be filtered from the water.

Because the water will, from the outset, contain a radiological pollutant, it is illegal, under the Massachusetts Ocean Sanctuaries Act, to discharge it into a protected ocean sanctuary. Cape Cod, Duxbury, Kingston, and Plymouth Bays are all protected ocean sanctuaries under Massachusetts law.¹

The results were released, though not discussed in any real detail, at the May 22nd meeting of the Nuclear Decommissioning Advisory Panel (NDCAP). Before we examine the testing results, we should look at one of the broader themes of this meeting: a fraying sense of public trust. A number of factors produce this impression; one is NDCAP’s report to the Governor and Legislature, made annually. The report raises very serious questions about precisely whose panel NDCAP is: the general public’s — or Holtec’s?

(The May 22nd NDCAP Meeting; credit — J. Benjamin Cronin.)

NDCAP Report Elides Public Concerns

Per statute, NDCAP is tasked with producing a report annually, the purpose of which is to advise the Governor and Legislature on the decommissioning of Pilgrim. According to my understanding, the draft report presented on May 22nd to the Panel was produced primarily by Mary J. Gatslick, of Plymouth, David Noyes, of Plymouth, and Panel Vice Chair Pine DuBois, of Kingston (the Panel has no authority to direct decommissioning, it should be noted).

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.

Mrs. Gatslick’s draft, in the view of NDCAP Member James Lampert, of Duxbury, 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).

There was one significant amendment to the report, added at the behest of Panel Member Andrew Gottlieb, of Mashpee, and Executive Director of the Association to Preserve Cape Cod — that the report note that some members of the public, and of the Panel itself, assert that the proposed discharge is illegal. With this amendment, the report was approved by the Panel on May 22nd, by an 11-3-2 vote.

The dissenting votes were Mr. Lampert, Mary Lampert, of Duxbury, and Henrietta Cosentino, of Plymouth.

Mr. Gottlieb abstained, as he was not a member of the Panel until late in 2022. Jennifer Robertson, a new member appointed by the Executive Office of Health and Human Services who was attending her first meeting, likewise abstained. The remaining members voted in favor.

The primary authorship of the approved report, by a decades-long former employee of Holtec that gives short shift, if not entirely eliding, the deep and legitimate concerns of the public, likewise does nothing to instill the public trust — quite the contrary.

State Testing Reveals Chemical & Radiological Pollutants; Erosion of Trust

Meanwhile, state officials acknowledged the existence of the pollutants, with MADEP’s Seth Pickering saying that a fuller statement from the relevant departments would be available the next day.

That evening of May 22nd, Mr. Pickering did note that the state data results matched those obtained by Holtec, and described them in general terms. Of the 239 substances tested for, the state found 22 non-radiological pollutants, and 5 radiological pollutants. The non-radiological pollutants included PFAS, aluminum, arsenic, beryllium, boron, cadmium, chromium, cobalt, iron, lead, nickel, potassium, selenium, silver, thallium, and zinc. The radiological pollutants were: manganese-54; cobalt-60; zinc-65; cesium-137, and tritium, a radioactive isotope of hydrogen. While this is the water prior to treatment, for chemical reasons, tritium cannot be filtered from the water, making its discharge into a protected ocean sanctuary contrary to law.

The way in which the state agencies released the data, and apparently attempted to “game” the timing thereof, appears to have seriously eroded trust in the relevant departments.

Some observers suggested that the testing itself — which took place on April 5th at Pilgrim, with observers from the Commonwealth and the Town of Plymouth, as well as Holtec — was flawed. Mrs. Lampert noted that the testing only occurred in the center of the water in question; that is, it did not sample the lowest points in the water, where pollutants would accumulate after decades of industrial activity.

The way in which state agencies released the data, meanwhile, suggested a concerted attempt to suppress this extremely relevant data ahead of the May 22nd NDCAP meeting; the next NDCAP meeting is at the end of July. Matters not discussed at the May meeting, like the details and significance of the testing results, will necessarily wait until the July meeting.

The data was released to the actual members of the Panel via email by Vice Chair Pine Dubois at 2:39 p.m. on the afternoon of May 22nd — a little less than four hours before the meeting. Ms. Dubois asked that the information be embargoed prior to the NDCAP meeting that evening. Given the complexity of the material, it is difficult to imagine that all of the members of the panel had sufficient time to read, absorb, and seek opinions from relevant experts on the testing results.

This conduct with respect to the testing data seems to stand in stark contradiction to the goals for the Department of Public Health enunciated by its recently appointed head, Dr. Robbie Goldstein.

“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,” Dr. Goldstein told The Boston Globe’s Kay Lazar, in a May 16th story.

If trust is the chief desideratum at the Department of Public Health, its actions in this matter have had the opposite effect: for this correspondent and for other close observers, the conduct of the state agencies with respect to the testing has produced a serious erosion of trust, and not only on the issue of testing and transparency.

Mrs. Cosentino, echoing Mr. Gottlieb, noted a pattern, whereby major decisions or developments occur immediately prior to an NDCAP meeting — which is supposed to be devoted, in part, to informing the public — and then are excluded from the immediately subsequent meeting with what seems like studied intention. Mr. Gottlieb pointed to the example of Holtec’s extension of the decommissioning timeline prior to an NDCAP meeting, without giving it due weight at the subsequent meeting; Ms. Cosentino pointed to the original decision to pursue the discharge of wastewater into the bay, which she suggested was timed in late 2021 so as to purposefully avoid discussion at the nearest NDCAP meeting.

Indeed, issues that may have been usefully raised at the May 22nd meeting were included in a May 24th story by journalist Christine Legere of The Provincetown Independent. Ms. Legere reported that the radiological pollutants revealed by the testing raised deep concerns for Dr. Ken Buesseler, a marine chemist at the Woods Hole Oceanographic Institution in Falmouth. Dr. Buesseler holds a Ph.D in marine chemistry from the Massachusetts Institution of Technology and Woods Hole Oceanographic Institution’s joint program. His research focuses on radioactive elements in the ocean.

He told Ms. Legere that the units used in the data were not especially illuminating.

“The result might read .003, but that’s actually quite a lot of radioactivity compared to what’s in the ocean. The numbers for cesium-137 in the untreated water are 200 million times higher than what’s in the ocean right now,” Dr. Buesseler said.

He further noted to The Independent’s Legere that even a 99 percent rate of success in removing the radiological pollutants may well leave levels of pollutants as much as one million times higher than that which naturally occurs in the ocean. And he noted that the presence of these isotopes strongly suggests the presence of other radiological pollutants.

Testing Proves Discharge Will Be Illegal

The testing information, however, does establish one thing: no matter how much filtration Holtec does, this water will contain tritium, which is chemically unfilterable. It will, necessarily, remain in the water in question, by Holtec’s own representations.² Because Massachusetts laws draw a baseline of zero pollutants being discharged into protected ocean sanctuaries such as Cape Cod Bay, the discharge is not allowed under our laws, which Holtec specifically agreed to follow in its binding, June, 2020, Settlement Agreement.³

We often see confusion about this matter, including from spokespersons from our state agencies that are quoted in the press. Because this view is so erroneous, and in my view, dangerously so, I wish to choose one example that shall stand in for all the rest:

In a May 25th story on WBUR, DPH spokeswoman Ann Scales told reporter Barbara Moran that “If a release were permitted, the water would have to meet concentration standards, be released slowly via batches, and be greatly diluted with Holtec’s seawater intake system prior to any discharge," she said.

With all due respect to Ms. Scales, this answer is based on a faulty premise: there is no legal way to release this water into Cape Cod Bay. The water necessarily will contain the radiological pollutant tritium; it is therefore impossible to issue a permit under the Massachusetts Ocean Sanctuaries Act (M.G.L. c. 132A Secs. 18 and Sec. 15(4)).

In response, we often hear the argument that states essentially have no control over nuclear matters, and that it is a Federal matter. This is, in legal terms, a preemption argument, the idea that in this matter, Federal law preempts and supersedes State laws.

This is erroneous.

As has been repeated numerous times — at NDCAP meetings, in the press, and in private communications — because of the June, 2020, Settlement Agreement, Massachusetts state laws apply. There is no Federal preemption, both because of the contractual nature of the Settlement Agreement, and because, even in the absence of such a contract impelling Holtec to follow Massachusetts statutes, United States case law is clear: states retain a broad authority under the Constitution to regulate their environments and economies; there is only Federal preemption if state laws and regulations on nuclear matters contradict Federal laws and regulations.⁴

However, there is no Federal requirement for Holtec to discharge this water; it simply wishes to, for reasons of cost. There is therefore no contradiction between Massachusetts and U.S. laws, and there is therefore no preemption.

The activities requested under Holtec’s application for a permit modification —namely, the discharge of the ~1.1 million gallons of radioactive wastewater — is illegal on its face. However, it is worth noting, and examining in some depth, the standards by which the permit must be judged — these include, at both the State and Federal levels, what are known as anti-degradation standards.

(The view from North Plymouth; credit — J. Benjamin Cronin. )

Anti-Degradation Standards and Classifying Cape Cod Bay as an Outstanding Resource Water

The essential idea behind anti-degradation standards is that, under the U.S. and Massachusetts Clean Water Acts, one cannot make waters of the United States or the Commonwealth worse than they were.

Massachusetts lays out its surface water regulations in the Code of Massachusetts Regulations (CMR) at 314 CMR 4.00; anti-degradation standards are laid out at 314 CMR 4.04. The stringency of the standards is based upon a tiered classification system; essentially, the higher up the tier level a body of water is classified, the more stringent the anti-degradation standards that are applied.

Presently, Cape Cod Bay is not designated at all in the written regulations, where water classifications are extensively listed at 314 CMR 4.06, beyond a 1,000 foot area directly proximate to the Cape Cod National Seashore. However, the DEP has informed members of NDCAP who have asked that they presume Cape Cod Bay to be High Quality Waters (HQW), which would require a review consistent with Tier 2 Federal anti-degradation standards; put simply, these are not the weakest, but nor are they the strongest standards.

Greater levels of protection exist at higher levels of classification — a designation of Cape Cod Bay as Outstanding Resource Waters (ORW), subject to Tier 2 1/2 review by the State, would not only dramatically decrease Holtec’s room for legal maneuver, it would lay the groundwork for protecting the Bay against future, presently unknown threats.

The grounds for changing the classification of the waters are several. Outstanding Resource Waters are defined at 314 CMR 4.02 as “waters designated for protection… based on their outstanding, socio-economic, recreational, ecological and/or aesthetic values.”

All of these are in evidence in Cape Cod Bay. In socio-economic terms, the Bay is a key resource for the Commonwealth. The fisheries of the Towns stretching from Hull to Provincetown were worth approximately $774 million in the summer of 2022. In 2016, the entire Blue Economy of the region (fishing, recreation and tourism, marine science, transport, and marine infrastructure.) was worth approximately $1.4 billion dollars, according to the Cape Cod Blue Economy Foundation; with inflation, that is closer to $1.78 billion today, according to the Bureau of Labor Statistics’ Inflation Calculator.

The recreational value of the bay is likewise evident. In October, 2000 — over 2 decades ago — the Cape Cod Commission estimated the region saw 5.23 million tourists annually; with population growth, that number has surely increased.⁵ In 2020, according to the National Park Service, there were over 4 million visitors to the Cape Cod National Seashore alone.⁶

In ecological terms, the bay is already threatened. Severe outbreaks of hypoxia occur in the southern portion of the bay, while algal blooms and eelgrass die-off affect waters throughout the region. The threats from nitrogen runoff are so severe that upcoming changes to Title V (septic system) regulations will likely affect the entirety of Cape Cod, and significant portions of southern Plymouth County. It is preeminently not the time to add radiological pollutants to the litany of ecological worries with which the Bay must contend.

So far as the Bay’s aesthetic value, it has provided a source of solace and serenity, as well as been the subject of depiction and expression, for generations of writers, painters, and other artists. The artistic-theatrical colony that began at Provincetown about a century ago is but one example; Thoreau’s writings on the region likewise form an important part of the cultural heritage of the Commonwealth and the nation. It is aesthetically rare and valuable.

For all of these reasons, the relevant state authorities should be urged, preferably by our elected Select Boards as well as individual citizens, to change the classification of the Bay to an Outstanding Resource Water (ORW). Other changes in classification, such as requesting a designation of an Area of Critical Environmental Concern (ACEC), are also open to citizens.⁷

In my understanding, those relevant state authorities include: Executive Office of Energy and Environmental Affairs Secretary Rebecca Tepper, and Massachusetts DEP Commissioner Bonnie Heiple, and Lealdon Langley, Director DEP Division of Watershed Management; I have appended their contact information in a footnote.⁸

This change in classification is in the public interest, a would be a critical weapon in our arsenal as we continue the struggle to preserve our ancient oceanic commons.

The next NDCAP Meeting is typically scheduled for the fourth Monday in July, which is July 24th, 2023, in the Great Hall at Plymouth Town Hall, at 6:30 p.m.. A rally in defense of the Bay is planned for June 16th, 2023, at the Plymouth Town Wharf, at 5 p.m.

1. M.G.L. c. 132A, Sections 12-18. See Section 13(b) for definition of Cape Cod, Duxbury, Kingston, and Plymouth Bays as ocean sanctuaries. See Section 15(4) for the prohibition against discharging waste into an ocean sanctuary. See Section 18 for the prohibition on permitting any activity forbidden under the Act.

2. This is why at the September 26th, 2022, NDCAP meeting we were treated to the propagandistic presentation by paid nuclear industry advocate Dr. James Conca, devoted to the argument that tritium is not dangerous, and therefore, we oughtn’t worry about it. But the issue is not whether it is dangerous — the issue is whether or not it is present in the water. The test results from both Holtec and the State demonstrate that tritium is and will be in the water; whether or not Dr. Conca thinks it is safe is beside the point — it is illegal.

3. The Settlement Agreement, III (10)(l); https://www.mass.gov/doc/pilgrim-settlement-agreement/download. The Ocean Sanctuaries Act, M.G.L. c. 132A Secs. 12-18.

4. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983); English v. General Electric, 496 U.S. 72 (1990); Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984); Virginia Uranium, Inc. v. Warren, 587 U.S. ___ (2019). Writing for the unanimous Court in English v. General Electric, Justice Harry Blackmun noted the logically absurd conclusions towards which the arguments from the nuclear industry drive: “In addressing this issue, we must bear in mind that not every state law that in some remote way may affect the nuclear safety decisions made by those who build and run nuclear facilities can be said to fall within the preempted field. We have no doubt, for instance, that the application of state minimum wage and child labor laws to employees at nuclear facilities would not be preempted, even though these laws could be said to affect tangentially some of the resource allocation decisions that might have a bearing on radiological safety.” (Page 496 U. S. 85)

5. https://archives.lib.state.ma.us/bitstream/handle/2452/202400/ocn182755979.pdf?sequence=1&isAllowed=y,%20pg.,20;

6. https://www.capecod.com/newscenter/over-4-million-visited-cape-cod-national-seashore-last-year/

7. A second, and potentially significant change that could be sought for not only Cape Cod Bay, but other areas in the Town of Plymouth and southeastern Massachusetts, including Manomet Hill, the highest spot on the Atlantic coast south of Maine and north of Veracruz, is the Area of Critical Environmental Concern (ACEC) designation. The Dept. of Conservation and Recreation write on its website that “an Area of Critical Environmental Concern (ACEC) is a place in Massachusetts that receives special recognition because of the quality, uniqueness, and significance of its natural and cultural resources. Such an area is identified and nominated at the community level and is reviewed and designated by the state’s Secretary of Energy and Environmental Affairs. The Department of Conservation and Recreation (DCR) administers the ACEC Program on behalf of the Secretary. Designation of an ACEC increases environmental oversight by increasing state permitting standards through elevated performance standards and lowering thresholds for review.”

Ellisville Harbor and the Herring River Watershed are already designated as ACECs in the Town of Plymouth. Wellfleet Harbor is so designated across Cape Cod Bay.

The regulations governing ACECs are found at 301 CMR 12.00. According to 301 CMR 12.04(01), governing nomination of an ACEC, “areas may be nominated for designation as ACECs by: (a) any ten citizens of the Commonwealth; (b) the Board of Selectmen, City Council, Mayor, Planning Board, or Conservation Commission of any city or town which would be affected by the designation; (c) any state agency or regional planning agency; (d) the Governor or any member of the General Court.”

At 301 CMR 12.04(2), the regulations state that “nominations shall be made by letter to the Secretary and must be accompanied by summary information regarding the resources of the proposed area, a suggested boundary for the area, and a general description of the benefits that would be achieved by designation. The nominated areas shall be delineated on the applicable map of the USGS 7½ minute series or equivalent. If the features of the area are not clearly shown on such a map, additional maps, diagrams, or sketches at a larger scale must be included.”

At 301 CMR 12.05, eligible areas are enumerated: “To be eligible for nomination, an area shall contain features from four or more of the following groups: (1) Fisheries. Anadromous/catadromous fish runs, fish spawning areas, fish nursery areas, or shellfish beds. (2) Coastal Features. Barrier beach system, bank, beach, rocky intertidal shore, or dune. (3) Estuarine Wetlands. Embayment, estuary, salt pond, salt marsh, or beach. (4) Inland Wetlands. Freshwater wetlands, marsh, flat, wet meadow, or swamp. (5) Inland Surface Waters. Lake, pond, river, stream, creek, or oxbow, bank, Riverfront Area. (6) Water Supply Areas. Surface water reservoir, reservoir watershed, groundwater aquifer, or aquifer recharge area. (7) Natural Hazard Areas. Floodplain, erosion area, or unstable geologic area. (8) Agricultural Areas. Land of agricultural productivity, forestry land, or aquaculture site. (9) Historical/Archaeological Resources. Buildings, site, or district of historical, archaeological, or paleontological significance. (10) Habitat Resources. Habitat for Threatened or Endangered plant or animal species, habitat for species of Special Concern, riparian corridors, or other significant wildlife habitat. (11) Special Use Areas. Significant undeveloped or natural areas, public recreational areas, Scenic Landscapes, or Heritage Landscapes.”

In my view, Manomet Hill would be eligible under (2), (9), and (11), above.

8. Rebecca Tepper, Secretary, Executive Office of Energy and Environmental Affairs100 Cambridge Street, Suite 900 -Boston, MA 02114-rebecca.tepper@state.ma.us;

Commissioner Bonnie Heiple, Massachusetts Department of Environmental Protection100 Cambridge St., Suite 900 Boston, MA 02114 Bonnie.Heiple@mass.gov;

Lealdon Langley, Director DEP Division of Watershed Management-100 Cambridge Street Suite 900, Boston, MA 02114 Lealdon.Langley@mass.gov.