Holtec Appeals DEP Decision, Faces Seven Motions to Intervene in Opposition

Candidates Express Bipartisan Opposition to Holtec's Proposed Discharge of Radioactively and Chemically Contaminated Wastewater into Cape Cod Bay

BEN CRONIN

OCT 11

[Readers, this is a long article, which you may wish to open in a web browser rather than read as an email, and it can be divided into three parts; the first part deals with the press conference held last week on the Holtec appeals process; the middle section deals with the views of local legislators and candidates for legislative office on the issue; and the third deals with the appeal and the motions to intervene themselves. I should note also that while I am a member of the grassroots Save Our Bay MA coalition, and of the Town of Duxbury Nuclear Advisory Panel, the views expressed below are solely my own as an individual citizen. Thanks for reading and subscribing. — Ben Cronin.]

(PLYMOUTH) — Rep. Dylan Fernandes (D-Falmouth), Association to Preserve Cape Cod (APCC) Executive Director and Massachusetts Nuclear Decommissioning Citizens Advisory Panel (NDCAP) Member Andrew Gottlieb, and Seth Rolbein, Senior Outreach and Policy Advisor at the Cape Cod Commercial Fishermen’s Alliance (CCFA), spoke at a press conference at Plymouth Rock on Wednesday, October 2nd, updating the public on the collective effort to oppose Holtec’s appeal of the final determination by the Massachusetts Department of Environmental Protection (MassDEP) last July, which denied Holtec’s March 2023 application to modify its permit to allow discharge of what was then more than 1 million gallons of radioactively and chemically contaminated wastewater (today, the figure is between 930,000 and 940,000 gallons, according to information provided by Holtec at last month’s NDCAP meeting).

MassDEP denied Holtec’s application to modify its permit to allow dumping on the grounds that it violates the Massachusetts Ocean Sanctuaries Act.¹ Section 13(b) of the Act defines Cape Cod Bay — from Race Point to Brant Rock, and including Duxbury, Kingston, and Plymouth Bays — as a protected ocean sanctuary. Section 15(4) of the Act prohibits “the dumping or discharge of commercial, municipal, domestic or industrial wastes” into any protected Ocean Sanctuary. Under the regulations promulgated pursuant to the Act, “wastes” are defined as follows: “Wastes means any unwanted, discarded, or environmentally harmful solid, liquid, or gaseous materials resulting from commercial, municipal, domestic, or industrial Activities….”²

(Kingston Bay, from Bay Farm on the Duxbury-Kingston line, looking towards the mouth of Duxbury, Kingston, and Plymouth Bays where they enter Cape Cod Bay, all of which are protected ocean sanctuaries. Credit — Ben Cronin.)

Holtec has appealed this decision, noted Rep. Fernandes, “and we must stop that appeal,” he said. The company has “repeatedly breached the public trust,” he added, and its desire to discharge the industrial wastewater into Cape Cod Bay threatens a Blue Economy valued at approximately $1.4 billion and accounting for approximately 200,000 jobs, he said. He pledged to “stand up for residents” of the greater Cape Cod Bay region. Rep. Fernandes is running for the Plymouth and Barnstable State Senate seat stretching from Mashpee to Pembroke being vacated by present Sen. Susan Moran (D-Falmouth).

Rep. Mathew Muratore (R-Plymouth), who is also running for the Plymouth and Barnstable State Senate seat, has consistently opposed dumping, as has the entire state and federal legislative delegation from the region. He said that he had been working on issues relating to Pilgrim for two decades — Rep. Muratore was a Plymouth Selectman before being elected to the House of Representatives in 2014 — and reiterated his opposition to discharge:

“As the delegation from the South Shore and Cape Cod, we’ve all been united on this for some time,” he told The Plymouth County Observer during a phone conversation. “We’re supportive of everyone’s voice being heard in this legal proceeding.”

Mr. Gottlieb, of the APCC, said at the press conference that Holtec’s appeal notwithstanding, this was, in actuality, “a simple case” — “a plain reading” of the Ocean Sanctuaries Act clearly prohibits the discharge of industrial wastewater into an protected ocean sanctuary. The proposed discharge, he said, was not covered by any of the exemptions included in the Act; because Pilgrim Nuclear Power Station is no longer producing power, it no longer is covered by any of the exemptions in the law related to power production. Rather, said Mr. Gottlieb, the intention here appears to be for Holtec to draw out the process, a move he called “cynical.”

Holtec, it should be noted, appears presently to be using evaporation of the wastewater in question — both natural evaporation and forced evaporation through the use of heaters — as its preferred method of disposition. This evaporation, which is unfiltered, has been decried by members of the Greater Boston Physicians for Social Responsibility and Prof. Petros Koutrakis, of the Harvard T.H. Chan School of Public Health, for its potential threat to human health. Both discharging the wastewater into the bay and evaporation have in the past been characterized by Jack Priest, Director of the Radiation Control Program at the Massachusetts Department of Public Health, as “lousy choices.”³

Mr. Gottlieb called the federal preemption claims by Holtec — that is, Holtec’s argument that the federal Atomic Energy Act of 1954 preempts the Massachusetts Ocean Sanctuaries Act — “hollow”, and noted that Holtec, in the Settlement Agreement it signed with the Commonwealth in June, 2020, made a commitment to follow Massachusetts environmental laws.

Moreover, said Mr. Gottlieb, the blame for any permit uncertainty must be laid at Holtec’s feet; it, after all, is the party which is extending the appeals process, rather than accepting the July 18th Final Determination from MassDEP.

Seth Rolbein, of the Cape Cod Commercial Fishermen’s Alliance, was emphatic about the stakes for the regional fishing industry. “Fishermen are the Blue Economy,” said Mr. Rolbein. He said that the Fishermen’s Alliance was “proud to stand with the Wampanoag Tribe,” as well as the Association to Preserve Cape Cod, in opposition to Holtec’s proposed discharge. He noted that ratepayers contributed to the Decommissioning Trust Fund from the very beginning of Pilgrim’s operation, and that the purpose of this fund is to pay for the costs of decommissioning the plant. However, the less of that fund which Holtec spends on decommissioning, the more it is able to keep in profits, Mr. Rolbein said; this, he said, was why it has proposed discharge of the wastewater into the bay, rather than paying to ship it to a licensed waste storage facility. Holtec, said Mr. Rolbein, is attempting to take “the cheap way out.”

(Seth Rolbein, of the Cape Cod Commerical Fishermen’s Alliance, speaks at the podium, while Rep. Dylan Fernandes (D-Falmouth) and Association to Preserve Cape Cod Executive Director Andrew Gottlieb listen. At left: journalist Grady Culhane of Cape Cod Broadcast Media. Credit — Ben Cronin.)

It is important to note here as well that regional industries face the very real possibility of reputational damage from any discharge into Cape Cod Bay (e.g., China suspended seafood imports from Japan for approximately one year after the latter discharged wastewater left over from the disaster at Fukushima into the Pacific Ocean).

Patrick O’Brien, Director of Government Affairs and Communications for Holtec International, provided the following statement to The Plymouth County Observer:

“As the country continues to realize that future energy demand for clean baseload power will only come from nuclear power we continue to strive to be the leader in the industry for future nuclear deployment.  Part of that goal is to safely clean-up sites of previous safe nuclear generation for future economic reuse.  Our goal to clean-up Pilgrim in 8 years has already been delayed as a result of the challenges to safe discharges, which had occurred for over 45 years of plant operation and are regulated by the NRC,” Mr. O’Brien asserted.

It should be pointed out here that Mr. O’Brien is fallaciously conflating two different water discharges: as MassDEP’s Lealdon Langley noted in a July 21st, 2023 letter to Lisa Berry, Director of the Office of Coastal Zone Management: “The waste generation, consolidation, packaging, and other decommissioning activities, such as dismantlement of the reactor vessel, are distinct from prior use of the waters and have introduced new pollutants or increased pollutant concentrations in these waters. Thus, the proposed discharges are distinct from historical discharges from these water volumes.”⁴

Mr. O’Brien, of Holtec, continued: 

“We will continue to work through the appeal process, as allowed for in regulations, and look forward to a determination from our appeal that was filed.  Our goal is to provide facts over fear about the reality of safe, clean baseload power and help lead a clean energy future.  Hopefully, Massachusetts will understand you can’t run a full-time economy on a part-time grid and see the value that nuclear provides as has been shown by strong bi-partisan federal support for operating and future nuclear deployment, as well as a majority of American’s favoring nuclear power in recent polling, before it is too late for the states clean energy goals and the security of our grid,” he said.

If Mr. O’Brien is interested in facts, he might consider the following facts: in 2006, The National Academies of Science Biological Effects of Ionizing Radiation VII Report (BEIR VII) found that even low levels of radiation can produce effects at the level of the basic genetic code of biological cells: “At low doses, damage is caused by the passage of single particles that can produce multiple, locally damaged sites leading to DNA double-strand breaks (DSBs).”⁵ In other words, even low levels of radiation are damaging to the genetic material of the vast majority of organisms on Earth.

He might also consider the fact that a paper by Clapp and Cobb found that “[t]he temporal relationships of infant mortality, leukemia, thyroid cancer, and other diseases suggest that residents of local communities around and to the north of the [Pilgrim nuclear] power plant are at increased risk of health effects resulting from exposure to ionizing radiation. Leukemia (excluding chronic lymphocytic leukemia), in particular, was approximately 75% more frequent in 1982-1984 in the Plymouth area compared to the rest of the State.”⁶ These facts certainly bely any claims that Pilgrim was home to “safe nuclear generation”; after all, things that are “safe” aren’t generally associated with leukemia being 75% more frequent in their proximity; evidently, Mr. O’Brien and Holtec have a different understanding of the meaning of the word “safe” than that commonly used in English.⁷

Bipartisan Opposition to Holtec’s Proposed Discharge

The issue of Holtec’s proposed discharge has been the subject of remarkable and bipartisan agreement on the part of local elected officials and candidates for office.

As noted above, both Rep. Fernandes and Rep. Muratore — the Democratic and Republican nominees for the Plymouth-Barnstable State Senate seat — oppose discharge. As the comments of other local elected officials and candidates for elected office show, this bipartisan opposition is widespread across the region.

In the First Plymouth District, consisting of Precincts 4, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, and 18 of the Town of Plymouth, Michelle Badger, the Democratic nominee for State Representative and the current Chair of the Plymouth School Committee, gave her thoughts on the matter via email.

(The First Plymouth District; credit — malegislature.gov.)

“I fully support Rep. Fernandes and all those standing up to Holtec in our efforts to protect our Bay.  It’s crucial that we find a long-term solution for the storage of the nuclear-treated wastewater currently held at holtec in Plymouth. Discharging this water into our bay is not an option, as it violates the Ocean Sanctuaries Act and poses a significant threat to our natural resources and local economy,” said Ms. Badger. 

“We cannot afford to let Holtec take years to address this issue. Evaporation is already occurring, and we lack sufficient information about its implications for residents in both the short and long term. We need to work together to secure a permanent disposal solution that allows our town to move forward with planning for the next life of the property.  Together, we need to advocate to protect our environment and ensure a healthy, environmentally conscious, and sustainable future for our community,” she said.

Jesse Brown, the Republican candidate for State Representative in the First Plymouth District, did not reply to two emails seeking comment.

In the Sixth Plymouth District, which includes the Town of Duxbury, Precincts 2A and 4 of the Town of Marshfield, Precincts 1, 2, 3A, 4, and 5 of the Town of Pembroke, Precincts 2 and 3 of the Town of Hanson, and Precinct 2 of the Town of Halifax, Becky Coletta, who has served on the Hanson and Pembroke Select Boards and is the Democratic candidate for State Representative for the Sixth Plymouth District, provided her thoughts via email. [Note: I attended a gathering held last month for Ms. Coletta’s campaign, hosted by Mary Lampert and Nancy Landgren, of the Duxbury Democratic Town Committee. – Ben Cronin.]

“I stand with Save Our Bay, DEP, and the intervenors in support of the DEP determination that wastewater from the closing of the nuclear power plant should not be dumped into Cape Cod Bay. My hope is the appeal can be heard quickly to move this process forward. Holtec’s litigation and delays, while it continues to evaporate water from the site, are costly in time, money and environmental impact. The dumping of the wastewater into the ocean sanctuary threatens the growing blue economy in our region, including the livelihood of our fishermen,” said Ms. Coletta.

Ken Sweezey, the Republican candidate for State Representative in the Sixth Plymouth District, with a background in small businesses and forensic science who served on the Town of Hanson Economic Development Committee and its Capital Improvement Committee, commented via email.

“I 100% agree with the decision to block the discharge of the water into Cape Cod Bay. I have spoke at length between my campaign in 2022 and 2024 that I also will be advocating and fighting for a clean Bay. Our fishing industry is already being pushed to the breaking point between increasing environmental and regulatory factors so I will always make sure there is not more negative impact to the industry,” he said.

“I am proud to have many of the local and regional stakeholders in many of our local businesses supporting my campaign,” said Mr. Sweezey.

(The Sixth Plymouth District. Credit — malegislature.gov.)

In the 12th Plymouth district, which includes the Towns of Kingston and Plympton, Precinct 3 of the Town of Pembroke, Precincts 1 and 2A of the Town of Halifax, Precincts 1 and 5A of the Town of Middleborough, and Precincts 1, 2, 3, 5, and 13 of the Town of Plymouth, State Representative Kathy LaNatra, who currently holds the seat and is the Democratic nominee for State Representative in the district, expressed her continuing opposition to Holtec’s proposed dumping via email.

“I was thrilled to see DEP's decision to deny Holtec's request to dump over 1 million gallons of wastewater into Cape Cod Bay. Cape Cod Bay is a protected ocean sanctuary that drives our region's tourism, shellfishing, commercial fishing and so many other industries. It is imperative that the wastewater from the decommissioning of Pilgrim Power Plant is handled in a safe and responsible way, one that does not involve dumping in our bay. I want to thank all those who have intervened in Holtec's appeal of this decision, as I strongly and firmly believe DEP's denial was the correct decision for our region," said Rep. LaNatra.

Eric Meschino, the Republican candidate for State Representative in the 12th Plymouth District, has likewise been outspoken in his opposition to Holtec’s proposed discharge. Mr. Meschino, a lobsterman, spoke to The Plymouth County Observer by telephone.

“The most disturbing thing is that they have the money” to properly dispose of this wastewater, said Mr. Meschino, but are choosing not to, because by not doing so, Holtec will be able to save a small proportion of the vast profit it seeks to realize via the decommissioning of Pilgrim.⁸

“This is the most insidious form of greed. They dump their trash on us, they make their hundreds of millions” and leave the people of the region to pay the long-term costs, he said. “They’ve got the money — just spend it,” said Mr. Meschino.

“It’s time for them to be a good citizen — a good corporate citizen,” he said, before also noting an issue of basic fairness: a commercial fisherman (or anyone else) who dumped even a fraction of the pollutants Holtec seeks to discharge into the Bay would likely face severe legal sanctions, including substantial fines.

(The 12th Plymouth District. Credit — malegislature.gov.)

At a time of great division nationally — and indeed, often locally, as well — this kind of wide-ranging, bipartisan unity on any issue is remarkable. Over the nearly three years of the present effort to halt Holtec’s proposed discharge, I have often been reminded of the way in which, in Britain’s parliamentary system, during the great crisis of the Second World War, the different political parties in that country, despite sharply divergent views on a number of questions, formed a “government of all parties” to meet the emergency faced by the nation. So it is here. People with widely different points of view on other questions have been able to agree that here, the multi-billion dollar, privately held, multinational corporation must follow the same laws as everyone else, and must not be allowed to violate the law by discharging its industrial wastewater into the public’s waters.

Holtec’s Appeal, and Seven Motions to Intervene in Opposition

Meanwhile, the legal battle continues.

Seven motions to intervene were filed with MassDEP’s Office of Appeals and Dispute Resolution (OADR) on September 19th: The Association to Preserve Cape Cod filed one, leading a group which includes the Cape Cod and Islands Association of Realtors®, the Cape Cod Chamber of Commerce, the Cape Cod Commercial Fishermen’s Alliance, Dylan Fernandes in his capacity as an individual citizen, and others.

The APCC Group is represented by Attorneys Lisa Goodheart and Alessandra Wingerter. In addition, motions to intervene were filed by the Town of Plymouth; the Town of Barnstable; Pilgrim Watch, represented by its Director Mary Lampert, of Duxbury; a collective motion to intervene to protect the environment by a group whose representative is James Lampert, of Duxbury (Mr. and Mrs. Lampert are married, and both serve as Members of the Nuclear Decommissioning Citizens Advisory Panel, and are my colleagues on the Town of Duxbury Nuclear Advisory Committee; Mrs. Lampert and I are both members of Save Our Bay); by Dr. Jo-Anne Wilson-Keenan and John Keenan, of Dennis (Dr. Wilson-Keenan and Mr. Keenan are members of Save Our Bay). In addition, I filed an individual motion to intervene in opposition to Holtec’s appeal.

In July, MassDEP issued its Final Determination, denying Holtec’s request to amend its existing permits to allow discharge of the industrial wastewater in question. The Department did so because the proposed discharge would violate the Ocean Sanctuaries Act.

“Pursuant to 314 CMR 2.08(1), the Massachusetts Department of Environmental Protection (‘MassDEP’) has determined to deny the Applicant’s request for permit modification,” wrote Lealdon Langley, Director of the Division of Watershed Management at MassDEP.⁹  

Holtec, in its August 16th appeal of the Final Determination, asserted via its Attorneys Jed Nosal and Jesse Reyes of the firm of Womble Bond Dickinson, that “MassDEP committed errors of fact and law by determining that the proposed discharge of treated wastewater from Pilgrim into Cape Cod Bay is not an ‘existing’ discharge under the OSA and that the proposed discharge is not ‘associated with’ generation. MassDEP also committed an error of law in determining that it has legal authority to prohibit the proposed discharge under the OSA entirely, as opposed to imposing pollutant effluent limits, because the Atomic Energy Act of 1954 (‘AEA’) preempts its application as a complete bar to discharging the treated radwaste effluent. Finally, MassDEP erred in failing to find that the discharge will be consistent with, and meet the requirements of, the Massachusetts Clean Waters Act (‘CWA’), as amended (G.L. c. 21, §§ 26–53) and implementing regulations at 314 CMR 2.00, 3.00, and 4.00.”¹⁰

The APCC group, via its Attorneys Alessandra Wingerter and Lisa Goodheart, of the firm of Fitch Law Partners, disagreed.

“As a factual matter, Holtec’s proposed discharge entails a new discharge of water pollution that would adversely impact important water resources and seashores, dunes, open spaces, or natural areas. The wastewater stream at issue has been shown to contain pollutants such as suspended solids, oil and grease, copper, zinc, lead, nickel, boron, and phenol. The potential release of decommissioning process wastewater from the spent pool fuel water and other sources at the Pilgrim Nuclear Power Station into Cape Cod Bay may have multiple negative impacts to the Bay, its natural resources, and the people who use and depend on them,” wrote Attorneys Goodheart and Wingerter on behalf of the APCC Group.¹¹

Among these negative impacts, they continued, are those relating to the safety of seafood, stating that “pollutants in Holtec’s decommissioning process wastewater can accumulate in seafood, which can affect its quality and safety.”

In terms of “[m]arine animal and/or organism health,” wrote Attorneys Goodheart and Wingerter, “pollutants in Holtec’s decommissioning process wastewater can have long-term unknown effects on the health of marine animals and/or organisms.” So far as risks to human health go, “[p]ollutants in Holtec’s decommissioning process wastewater may increase the risk of human exposure to dangerous contaminants.”  Finally, they noted that “[c]onsumers may reject local seafood over fears of contamination. Tourists, upon which the Cape Cod economy relies, may choose to vacation elsewhere because they may reject recreating in the Cape Cod Bay due to fears of human exposure to dangerous contaminants in Holtec’s decommissioning process wastewater.”¹²

Insofar as Holtec’s argument that the U.S. Atomic Energy Act of 1954 preempts the Massachusetts Ocean Sanctuaries Act, it has to be noted that Holtec agreed in the 2020 Settlement Agreement it signed to two things, which it appears to simply ignore now: both that there is no preemption here, and indeed, it expressly agreed not to make precisely the kind of preemption arguments that it is currently making. Here is the relevant language from the Settlement Agreement: at III (10)(l), both parties agree that “Holtec shall comply with all applicable environmental and human-health based standards and regulations of the Commonwealth;” the Ocean Sanctuaries Act and attendant regulations are precisely “environmental … standards and regulations of the Commonwealth.” At No. 48, both parties agree that “[n]o 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.”

Attorneys Goodheart and Wingerter argued against Holtec’s assertion that the discharge would be covered by exemptions contained in the Ocean Sanctuaries Act.

“Holtec’s proposed discharge does not qualify for any of the narrow exemptions laid out in the Ocean Sanctuaries Act. Of those few exemptions, only two warrant consideration here. First, the Ocean Sanctuaries Act allows for ‘the operation and maintenance of existing municipal, commercial or industrial facilities and discharges where such discharges or facilities have been approved and licensed by appropriate federal and state agencies.’ G.L. c. 132A, § 16; 9 see also 301 CMR 27.02. ‘Existing discharge’ is a defined term under § 12B, and, in the case of Cape Cod Bay, it means a discharge that is ‘a municipal, commercial or industrial discharge at the volume and locations authorized by federal and state agencies’ on December 8, 1971. Holtec’s proposed discharge of the industrial wastewater generated by decommissioning processes that it commenced only after the shutdown of the Pilgrim Nuclear Power Station cannot be treated as an ‘existing discharge’ because such discharge was not authorized by federal and state authorities as of December 8, 1971,” they wrote.¹³

Moreover, Attorneys Goodheart and Wingerter argued that “the Ocean Sanctuaries Act allows for discharges ‘associated with the generation, transmission, or distribution of electrical power.’ G.L. c. 132A, § 16. Discharges of coolants and other pollutants were accordingly allowed while the Pilgrim Nuclear Power Station was in operation, because such discharges were ‘associated with the generation, transmission, or distribution of electrical power.’ Here, by contrast, Holtec’s proposed discharge is of contaminated wastewater generated through the decommissioning of a plant that once provided — but no longer provides — electrical power. This fact takes Holtec’s discharge totally out of the scope of permitted discharges under G.L. c. 132A, § 16. Simply stated, the Ocean Sanctuaries Act reflects a deliberate balancing of competing policies: the Legislature, on behalf of the people of the Commonwealth, decided to allow discharges into an ocean sanctuary to the extent that the discharges contribute to the greater good of supplying electrical power to residents. But once that source ceases to supply electrical power, however, any further discharge is prohibited, as it cannot produce any continuing energy benefits to the residents of the Commonwealth.”¹⁴

As I noted in my own motion to intervene, this is an issue of quite ancient precedent. In the common law, the indefeasibly public nature of the sea extends back to Magna Carta, and is stated well by Justice Horace Gray in his opinion in the 1894 U.S. Supreme Court decision Shively v. Bowlby, relying on Lord Hale (see below):

“By the common law, both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high water mark, within the jurisdiction of the Crown of England, are in the King. Such waters, and the lands which they cover, either at all times or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement, and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the King's subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the King, as the sovereign, and the dominion thereof, jus publicum, is vested in him as the representative of the nation and for the public benefit.”¹⁵ 

Since the Revolution, as established in other cases (see, e.g., Martin v. Waddell¹⁶), the Crown has been replaced by the several States and the United States. Holtec, in seeking to discharge its waste into the public’s bay, is attempting to exercise title and dominion to the sea which it simply does not possess, but rather, are by their very nature vested in the Commonwealth and the nation.

(The trail to the sea at Bay Farm, on the Duxbury-Kingston line; credit — Ben Cronin.)

Moreover, the common right of the people to fishing in the sea is indefeasible, per jurist Sir Matthew Hale’s 17th century treatise, De Jure Maris (“Of the Law of the Sea”):

“The right of fishing in this sea and the creeks and armes thereof is originally lodged in the crown….But though the king is the owner of this great wast, and as a consequent of his propriety hath the primary right of fishing in the sea and the creekes and armes thereof; yet the common people of England have regularly a liberty of fishing in the sea and the creekes and armes thereof, as a publick common of piscary, and may not without injury to their right be restrained of it, unless in such places creeks or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive of the common liberty.”¹⁷

Holtec does not possess such “a propriety exclusive of the common liberty,” and the law prohibits it from attempting to usurp one.

The OADR expects to rule on the seven motions to intervene by next Thursday, October 17th, 2024.

1

M.G.L. c. 132A Secs. 12A-16J inclusive and Sec. 18.

2

301 CMR 27.02.

3

At the January 31st, 2022, NDCAP meeting, as reported by David R. Smith of The Old Colony Memorial at the time, Mr. Priest said that both discharging the wastewater into the bay or evaporating it were bad options. From Mr. Smith’s article: 

‘The effect (of evaporation) might be higher than putting it into the bay,’ NDCAP member Jack Priest said. ‘Both are lousy choices.’”

See David R. Smith, “No decision reached on wastewater disposal at shuttered Pilgrim Nuclear Power Station,” The Old Colony Memorial, Feb. 1st, 2022.

Moreover, the regulations promulgated pursuant to the Ocean Sanctuary Act quite clearly include “gaseous” pollutants in the definition of “waste”: “Wastes means any unwanted, discarded, or environmentally harmful solid, liquid, or gaseous materials resulting from commercial, municipal, domestic, or industrial Activities….” 301 CMR 27.02. 

4

Letter, Langley (DEP) to Berry (CZM), July 21st, 2023.

5

National Academies of Sciences, Engineering, and Medicine. 2006. Health Risks from Exposure to Low Levels of Ionizing Radiation: BEIR VII Phase 2. Washington, DC: The National Academies Press. https://doi.org/10.17226/11340, 313.

6

Clapp, R W, & Cobb, S. Leukemia and other health outcomes in the vicinity of the Pilgrim Nuclear Power Station, Plymouth, MA. United States. Archives of Environmental Health. Delivered at a conference held in Upton, NY, Sept. 13-15, 1989; the quoted passage is found in the Abstract.

7

The Merriam-Webster Dictionary defines “safe” in the following relevant ways – the first definition (No. 1) is “free from harm or risk : UNHURT”; the second (No. 2A) is “secure from threat of danger, harm, or loss”; the third (No. 3) is “affording safety or security from danger, risk, or difficulty”; the fifth (No. 5A) is “not threatening danger : HARMLESS”; https://www.merriam-webster.com/dictionary/safe.

8

On this figure, which is in the hundreds of millions, see Comment of James B. Lampert, August 29th, 2023, p. 45, Footnote 21. https://www.mass.gov/doc/public-comments-to-deny-swdp-modification-for-pilgrim-nuclear-power-station-8-28/download.

9

MassDEP, Final Determination, July 18th, 2024.

10

Attorneys Jed Nosal and Jesse Reyes, HDI Appeal, p. 6; I have rendered quotation mark (“ ”) in the original as apostrophes (‘ ') in the quoted passage.

11

Attorneys Goodheart and Wingerter, Memo In Support of APCC’s Motion to Intervene, p. 6

12

Goodheart and Wingerter, pp. 6-7.

13

Goodheart and Wingerter, pp. 8-9.

14

Ibid., p. 9. This is similar to an argument made by James Lampert, of Duxbury, in his Comments to DEP of August 29th, 2023, in which he wrote that “it seems clear that, when it enacted Section 16, the Massachusetts legislature was concerned with operating power plants. It recognized that some discharges were needed while a plant was operating. But it did not allow any discharges from a plant that was no longer generating electricity for the public. In other words, the legislature was willing to allow discharges that were potentially harmful to the public health so long as the economy and public were receiving the generated electric power. Once the public benefit ended, there was no longer any justification for the concomitant public risk.

Finally, the ‘existing facilities’ and discharges exemption is … a grandfather clause. In substance, it is limited to plants as they existed before December 8, 1971, and limits future discharges to then-existing plants and at the same volume as licensed discharges predating the cut-off date. In other words, an existing, operating-in- December 1971 facility can continue doing exactly what it was doing before that date, but nothing more. 

There is no evidence that what Holtec wants to do in 2023 or 2024 is exactly what Pilgrim was doing in December of 1971.” James Lampert, Comment to DEP, Aug. 29th, 2023, pp. 29-30.

15

Shively v. Bowlby, 152 U.S. 11 (1894). In Massachusetts, because of a colonial statute still in effect, the beginning of the public ownership is measured from the mean low-water mark, rather than mean high-water.

16

Martin v. Waddell, 41 U.S. 367

17

Sir Matthew Hale, De Jure Maris, Pars Prima, Cap. IV.