Update Regarding Holtec Before NDCAP
Discharge of Radiologically and Chemically Contaminated Wastewater Contrary to US and Massachusetts Law
Readers:
Here is an update regarding Holtec, and the proposed discharge of approximately 1.1 million gallons of radioactive wastewater from Pilgrim Nuclear Power Station into Cape Cod Bay. This comes ahead of tonight’s (3/27) meeting of the Massachusetts Nuclear Decommissioning Citizens Advisory Panel at Town Hall in Plymouth, after which we may know more or different information. Here is a link,
including to PACTV if you wish to watch at home/online:
https://www.mass.gov/event/march-27-2023-meeting-of-the-nuclear-decommissioning-citizens-advisory-panel-ndcap-2023-03-27t183000-0400-2023-03-27t203000-0400
This is my understanding of the situation as it stands this morning, with the caveats that though I am a member of the Steering Committee of Save Our Bay, these are my personal views; and also that I am not a lawyer, though this reflects extensive educational discussions with knowledgeable attorneys. With all that said —
I am cautiously optimistic that we are in a better situation than this time last year, and we have forced Holtec to acknowledge that the laws of Massachusetts and the United States bind them, just as they bind everybody else. Nevertheless, we are not out of the woods by any means, and indeed, we need to be exceptionally vigilant on a number of matters:
In order to decommission Pilgrim, Holtec must get rid of approximately 1.1 million gallons of radioactively and chemically contaminated wastewater contained in the plant’s reactor cavity, the dryer/separator pit, the spent fuel pool, and the torus.
Holtec’s desired option — for reasons of private profit rather than the public good — is to discharge that contaminated water into the Bay, despite having other options: namely, trucking the waste to a licensed storage facility in West Texas; evaporating it; or leaving it in place.
The proposed discharge is not only illegal under the laws of the Commonwealth and the United States, it stands contrary to the great democratic will of the several Towns of the region, as expressed via ballot questions, a Town Meeting Article, and the emphatic insistence of multiple Select Boards.
Likewise, the entirety of our State and Federal legislative delegation has been unanimous in their opposition to discharge, and the Governor has been adamant in her public declarations against dumping. Indeed, it is to be hoped that several of the worthy bills that our local legislators have sponsored in this matter may find their way to the Governor’s desk.
In terms of the present law, the proposed discharge is contrary to Massachusetts and Federal statutes and regulations.
( The view of the mouth of Duxbury, Kingston, and Plymouth Bays from High Cliff, in North Plymouth; photo credit — J. Benjamin Cronin. )
There Is No Preemption of State Law by Federal Law In This Instance
Let’s start with a preliminary issue, which is that, contrary to the understanding of Holtec and others, there is no preemption in this instance. One frequently hears the argument that the Nuclear Regulatory Commission (widely considered one of the most absurdly captured regulatory bodies in the US Government), a Federal agency, has exclusive power over matters of radiological safety, and that since the NRC is essentially alright with Holtec’s proposed discharge, there is nothing that anyone else can do, because Federal law preempts state law with regard to nuclear matte3rs.
This argument is erroneous.
It is erroneous, first of all, because we have a legal contract, the June 2020 Settlement Agreement between Holtec and the Massachusetts Attorney General’s Office, and contracts are not preempted. In that document, both parties agree that “Holtec shall comply with all applicable environmental and human-health based standards and regulations of the Commonwealth” (Settlement Agreement, III (10) (l)); there are several statutes that apply, discussed below.
Second, this attempt to argue that Federal preemption exists here is erroneous even were we not to have the Settlement Agreement, US Case law is clear: on four occasions, the US Supreme Court was asked to decide whether or not the several States have the authority to regulate the nuclear industry.
In all four decisions, the Supreme Court sided with the States, and against the Nuclear Industry.
The Court ruled that Congress did not cede the entire field of radiological matters to the NRC, and that states continue to have their right to regulate and govern their own economies. Federal preemption only enters the picture if the State laws or regulations in question conflict with Federal laws or regulations. There is no requirement under Federal law or regulations that Holtec must dump; therefore, there is no conflict between Federal and Massachusetts statutes which prohibit dumping; there is therefore no preemption.
Indeed, the argument that Federal preemption essentially constitutes a “get out of jail free card” for the nuclear industry was roundly rejected by the Court — in General Electric v. English (1990), Justice Harry Blackmun, writing for the Court (the decision was unanimous), stated:
“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.”
And though the NRC has authority over radiological pollutants at the Federal level, the US EPA has authority, via the US Clean Water Act, over other chemical contaminants, which, in the water in question, include copper, zinc, and nickel; by Holtec’s own representations, it can filter at most 95% of these contaminants from the water in question. Tritium, a radioactive isotope of hydrogen that is in the water, cannot be filtered out, for chemical reasons. The EPA will be dealt with in the discussion of the NPDES (National Pollution Discharge Elimination System) permit below.
Relevant Massachusetts Statutes Prohibit Discharge;
Because there is no preemption, Massachusetts laws and regulations apply. These include statutes which prohibit the discharge of waste into the waters of the Commonwealth, such as the Massachusetts Clean Waters Act (M.G.L. c. 21 §§ 26 -53), the Massachusetts Oil and Hazardous Material Release Prevention Act (M.G.L. c. 21E), the Massachusetts Endangered Species Act (M.G.L. c. 131A), and the Massachusetts Ocean Sanctuaries Act (M.G.L. c. 132A §§12A-16J and §18).
I believe it is worth looking at the specific language of the Mass. Ocean Sanctuaries Act (OSA) in a bit more detail.
That statute, at §15(4), specifically prohibits “ the dumping or discharge of commercial, municipal, domestic or industrial wastes” into any Ocean Sanctuary of the Commonwealth. Note that the statute draws no distinction between radiological and non-radiological pollutants — it prohibits “commercial, municipal, domestic or industrial wastes” without distinction with regards to radioactivity. At §13(b) in the statute, the entirety of Cape Cod Bay, as well as Duxbury, Kingston, and Plymouth Bays, are all specifically enumerated as part of the Cape Cod Bay Ocean Sanctuary. Holtec’s discharge into these waters is therefore prohibited.
The Endangered Species Act, both the federal and the Massachusetts laws, likewise apply to the species in our bay so denominated under the Act, including the Right Whale (my understanding is that a citizens suit under the ESA is being considered by a resident of Duxbury).
NPDES Permit Renewal; Discharge Contrary to Anti-degradation Standards
At the Nov. 28th NDCAP meeting, Holtec announced that it would seek a modification of its present NPDES permit, which is issued concurrently under both the US EPA and the Massachusetts Dept. of Environmental Protection to allow discharge of the water in question into Cape Cod Bay.
This actually represents a retreat on the part of Holtec, believe it or not; for most of 2022, Holtec maintained that its present, unamended NPDES permit allows the discharge of the 1.1 million gallons of contaminated water in question.
The EPA, for its part, was clear that the permit did not allow discharge, and that discharging in violation of their permit would make the company, including its officers, subject to criminal sanctions under Federal law (see letter of James Chow of EPA to HDI’s Kelly Trice, 12/5/22).
Moreover, the EPA instructed Holtec that it must provide 90 days notification if it intends to discharge that water. This 90-day “trip-wire” is critical — it will not only give warning to the people of our region, but will serve as a useful red line, the crossing of which would call for immediate legal action.
This brings us to the present. At the Jan. 23rd NDCAP meeting, Holtec’s representative stated that it intended to submit its proposed modification to the NPDES permit by the end of the first quarter of this year, i.e., by March 31st, 2023. So far as I know, that schedule remains operative, and Holtec intends to submit its amendment of the permit imminently.
The permit, of course, should not be granted, in the first instance because other Massachusetts laws prohibit the discharge; permits do not, in my understanding, nullify statutes.
It should further not be granted because any such discharge would stand contrary to Massachusetts and United States anti-degradation standards. In other words, the proposed discharge fails to meet the regulatory standards which the EPA and MADEP must consider when making this decision about Holtec’s desire to amend the permit.
Anti-degradation standards are predicated, essentially, upon the idea that under the US Clean Water Act, all waters of the United States are afforded a certain minimum level of protection; that you cannot make waters worse than they are. Indeed, the Act divides waters into three tiers: in Tier 1 waters, which in my understanding extend to all waters in the nation, the Act calls for “Protection of water quality for existing uses.” Tier 2 waters are characterized as “high quality waters,” and must likewise be protected; and Tier 3 waters are Outstanding National Resource Waters.
I would argue that Cape Cod Bay and its many arms quite evidently ought to be considered Outstanding National Resource Waters. Race Point is located in the Cape Cod National Seashore, which is prima facie of outstanding value to the nation. Cape Cod Bay likewise supports a flourishing maritime economy, and is the site of events — the 17th century encounter between Wampanoag and the English — which constitute a critical, and contested, part of the national story. If Cape Cod Bay is not of outstanding importance to the nation, what waters are?
Moreover, the proposed discharge which Holtec seeks to legalize via the permit modification process plainly fails to meet at least two of the critical anti-degradation standards promulgated by the MADEP:
“The discharge is necessary to accommodate important economic or social development in the area in which the waters are located;” (314 CMR 4.04 (5)(a)(1)).
But exactly the contrary is the case here. The discharge threatens valuable economic interests. The region’s maritime economy is extremely valuable, with the fishery of the Towns surrounding Cape Cod Bay alone worth approximately $774 million; in 2016, the entire Blue Economy of the region (fishing, recreation, tourism, etc.) was worth approximately $1.4 billion dollars, according to the Cape Cod Blue Economy Foundation; with inflation, that is closer to $1.75 billion today.
Therefore, it is fair to say that the discharge, the perception alone of which is viewed with understandable horror by the local fishing industry, stands contrary to the “development” of the entire maritime economy of the region.
Likewise, the regulations hold that Holtec must meet the following standard: “No less environmentally damaging alternative site for the activity, receptor for the disposal, or method of elimination of the discharge is reasonably available or feasible;” (314 CMR 4.04 (5)(a)(2)).
Here, Holtec plainly fails to meet the standard laid out. There are numerous alternatives that are less environmentally harmful by which Holtec might dispose of this water. It therefore fails this test, as well.
We will know more this evening after the NDCAP meeting. In the meantime, a number of avenues, both legislative, regulatory, and legal, remain open to those who oppose this discharge.
The NDCAP will meet at 6:30 pm at Plymouth Town Hall. It can be viewed online via PACTV.org, and via the following link:
https://www.mass.gov/event/march-27-2023-meeting-of-the-nuclear-decommissioning-citizens-advisory-panel-ndcap-2023-03-27t183000-0400-2023-03-27t203000-0400