TMI Update: Jan 14, 2024


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Google inks nuclear deal for next-generation reactors

Google has signed a first-of-its-kind deal to purchase nuclear energy for its data centers
 
By Justine Calma, a senior science reporter covering energy and the environment with more than a decade of experience. She is also the host of Hell or High Water: When Disaster Hits Home, a podcast from Vox Media and Audible Originals.
 
Oct 15, 2024, 9:39 PM GMT+8
 
 
Google logo and black swirls
Illustration: The Verge

 

Google plans to buy electricity from next-generation nuclear reactors. It announced the deal yesterday, which it says is the world’s first corporate agreement to purchase electricity from advanced small modular reactors (SMRs) that are still under development.

Google inked the deal with engineering company Kairos Power, which plans to get its first SMR up and running by 2030. Google agreed to purchase electricity from “multiple” reactors that would be built through 2035.

Google needs a lot more clean energy to meet its climate goals while pursuing its AI ambitions. New nuclear technologies are still unproven at scale, but the hope is that they can provide carbon pollution-free electricity while solving some of the problems that come with traditional nuclear power plants.

Back in 2020, Google set a goal of running on carbon-free energy around the clock by 2030. It also committed to slashing its planet-heating pollution in half by 2030 compared to a 2019 baseline. And yet, since 2019, its total greenhouse gas emissions have grown by 48 percent, according to its latest environmental report.

“Obviously, the trajectory of AI investments has added to the scale of the task needed,” CEO Sundar Pichai said in an interview with Nikkei earlier this month. “We are now looking at additional investments, be it solar, and evaluating technologies like small modular nuclear reactors, etc.”

Other big tech companies with climate goals are trying to solve the same problem with nuclear energy. In March, Amazon Web Services announced its purchase of a data center campus powered by a nuclear power plant in Pennsylvania. Microsoft signed an agreement in September to help revive and purchase power from the shuttered Three Mile Island plant. 

What sets Google apart with this deal is that it’s turning to next-generation reactors rather than traditional nuclear power plants. SMRs are roughly one-tenth to one-quarter the size in comparison. Their size and modular design are supposed to make them cheaper and easier to build and site than their larger predecessors. And unlike solar and wind energy, which fluctuate with the weather and time of day, nuclear power plants can generate electricity around the clock. Even with new reactor designs, however, there are still environmental and health concerns when it comes to mining and enriching uranium for reactors and storing radioactive waste.

The US Nuclear Regulatory Commission certified a design for a small modular reactor for the first time last year. Experts tell The Verge they expect the first SMRs to connect to US power grids in the early 2030s at the earliest, and big tech’s interest in nuclear energy seems to be giving the industry a boost.

Google says its deal with Kairos Power would eventually help bring up to 500MW of carbon-free energy to power grids in the US. Kairos broke ground on its first demonstration reactor in Tennessee in July.

“Having an agreement for multiple deployments is important to accelerate the commercialization of advanced nuclear energy by demonstrating the technical and market viability,” Jeff Olson, Kairos Power vice president of business development and finance, said in a press release.


Ohio Attorney General Dave Yost in 2019.
 
 
By Kathiann M. Kowalski
 

The Ohio Attorney General’s office wants to keep information it produced in a state criminal case from going to plaintiffs in federal shareholder litigation. State lawyers also want to limit what former FirstEnergy executives Chuck Jones and Michael Dowling – who are defendants in both cases – can ask various witnesses in the shareholder proceeding.

The move to limit evidence is among the latest developments in Ohio’s ongoing corruption scandal surrounding the state’s 2019 nuclear and coal bailout law, House Bill 6. Other recent news includes: 

The Securities and Exchange Commission agreed to settle claims against FirstEnergy for $100 million, but filed a separate court case against former CEO, Chuck Jones, for alleged securities law violations.
Ohio regulators limited evidence from challengers’ experts in one of four HB 6-related cases last week, while letting a FirstEnergy witness testify about issues challengers said were beyond the scope of the hearing.
An audit report in another of the regulatory cases found FirstEnergy allocated only a small share of its spending on the HB 6 bribery scheme to Ohio utilities, and concluded there was little or no impact on customers.
HB 6 is an issue in at least one Ohio congressional campaign this fall, while a new report reviews FirstEnergy’s work to secure federal bailouts when Donald Trump was president.

State seeks to limit fact-finding

The Office of the Ohio Attorney General has gotten involved in ongoing shareholder litigation related to HB 6. An October 10 filing seeks to pause the disclosure of materials it turned over to former FirstEnergy executives Chuck Jones and Michael Dowling in the state criminal case against them. The motion also asks the court to block their depositions — questioning under oath — of several witnesses the state plans to call in the criminal case.

Stays of this nature in civil proceedings pending criminal prosecutions are not automatic. Among other things, courts typically weigh whether ongoing civil proceedings will impair defendants’ constitutional right against self-incrimination or otherwise hinder their ability to prepare a defense against the government’s criminal charges. 

The motion says Jones’ lawyer agrees that sharing discovery from the criminal case with plaintiffs could infringe on his right to a fair trial. However, the Ohio Attorney General notes that lawyers for Jones and Dowling have said they would oppose the stay on the depositions. 

In other words, it appears the state is trying to block something lawyers for Jones and Dowling think might be helpful to their civil or criminal cases — or both. 

“The State of Ohio has an interest in ensuring that Jones and Dowling do not ‘expand rights of criminal discovery beyond the limits’” of what they could otherwise get, the state’s filing said. Criminal lawyers can generally try to talk with the state’s witnesses, but those people generally can’t be compelled to answer under oath before trial, which would be the case for the depositions.

FirstEnergy spokesperson Jennifer Young declined to comment on the litigation. The company still has not turned over its internal investigation report to plaintiffs in the same litigation, despite a trial court order earlier this year directing them to do so. Briefing before the Sixth Circuit Court of Appeals on that issue wrapped up last month.

SEC settles with FirstEnergy but sues ex-CEO

Jones is also a defendant in a civil securities fraud case filed last month by the Securities and Exchange Commission. Separately, the SEC also agreed to a $100 million settlement with FirstEnergy. The charges and settlement with the company and the complaint against Jones were both announced September 12.
 
Among other things, the SEC’s investigation found FirstEnergy and its former CEO Chuck Jones made misrepresentations to investors about the company’s role in the alleged HB 6 corruption scheme.
 
FirstEnergy’s securities filings had already noted a reserve of $100 million related to the SEC investigation, so the similar amount is not a surprise. Nonetheless, it drew criticism.
 
“The settlement is disappointingly small, and does little to deter future legislative or regulatory capture by special interests,” said Nolan Rutschilling, managing director of energy policy for the Ohio Environmental Council.
 
The SEC’s order setting forth its charges and the settlement with FirstEnergy notes the company’s consent to its entry is limited to that proceeding. Thus, FirstEnergy’s settlement with federal securities law regulators can’t be used as admissions of liability in the shareholder litigation.
 

Tunnel vision?

Administrative law judges at a PUCO hearing last week granted FirstEnergy’s request to strike parts of testimony by experts for the Office of the Ohio Consumers’ Counsel and IGS Energy. Both parties and others claim the company violated Ohio law requiring corporate separation between utilities and unregulated affiliates.
 
The PUCO had already split off HB 6-related issues for an undetermined future review. But FirstEnergy objected to any mention of HB 6 and to any mention of former PUCO chair Sam Randazzo, even incidentally to matters before passage of the 2019 law.
 
“Such scope expansion would risk confusing the issues and result in a series of proceedings in which the same conduct is addressed more than once,” company lawyers wrote.
 
Letting FirstEnergy “hide the ball” does not mesh with the company’s public claims that its core values include integrity, openness and trust, the Consumers’ Counsel’s October 4 filing said in response. “And it will not aid in dispelling the black cloud that remains over the PUCO concerning its involvement in the HB 6 scandal,” it added.
 
“For consumers, the whole truth about HB 6 needs to come out sooner rather than later,” said Maureen Willis, the Ohio Consumers’ Counsel.
 
Among other things, Joseph Buckley’s written testimony for the Office of the Ohio Consumers’ Counsel argued FirstEnergy should pay penalties of nearly $53.3 million for violations of Ohio rules and an inadequate plan to maintain corporate separation. He calculated the proposed forfeiture at $25,000 per day from January 1, 2016 through November 21, 2021. That did not include any violations related to HB 6 itself, he said.
 
The PUCO’s website lists the corporate separation case as one of four HB 6-related cases. Earlier this year, other parties wanted all four cases consolidated, while FirstEnergy wanted three cases joined and the corporate separation case split off.
 
Randazzo helmed the PUCO when it began the piecemeal approach to issues related to HB 6. Two months later, he resigned after being implicated in the scandal. The PUCO, now chaired by Jenifer French, continued the same approach.
 
Two cases were consolidated in June, but the other two remain separate, with the corporate separation case being further split up.
 

Audit says customers didn’t pay for HB 6

Although FirstEnergy spent roughly $75 million on HB 6 efforts and associated lobbying, the company only allocated about $5 million to its Ohio utilities, a September 30 audit report by the accounting firm Marcum found. Most of that related to a $4.3 million payment to Randazzo shortly before Gov. Mike DeWine appointed him as PUCO chair. FirstEnergy previously admitted that payment was meant to secure Randazzo’s help on HB 6 and other matters.
 
However, the Marcum report said, customer charges for some of those accounts maxed out at a certain point. So, utility customers only paid about $15,000 more than they otherwise would have been charged, it concluded. 
 
“We already agreed to refund this amount, with interest,” said Young at FirstEnergy, noting the new audit results are consistent with a previous report for a capital investment rider. She also noted efforts the company has made since 2021 to strengthen ethics and accountability.
 
On one hand, the report’s findings appear positive: Although FirstEnergy spent millions for activity it admitted was corrupt, most was not charged to ratepayer accounts.
 
Yet the audit still documented improper charges to Ohio utility accounts. And it confirmed FirstEnergy did only a limited review before its assertion in 2020 that ratepayer funds were not used for HB 6.
 
Also, charges to utility accounts aren’t necessarily the same as spending ratepayer money. The audit team could not say how money put into a joint money pool was spent. That especially matters for a credit support rider the company collected about $450 million for, but which the Ohio Supreme Court ultimately held unlawful.
 
The audit team also didn’t review all depositions from HB 6-related shareholder litigation, some of which are subject to a protective order. Multiple witnesses also have not yet answered questions under oath in that litigation and in some of the HB 6 regulatory cases.
 
The audit also didn’t address amounts related to Cleveland-area entrepreneur Tony George, who helped set up a meeting between FirstEnergy leaders and former Ohio House Speaker Larry Householder. Nor did the audit include amounts FirstEnergy steered to dark money groups that supported Gov. Mike DeWine, Lt. Gov. Jon Husted, Ohio Senate President Matt Huffman, Ohio Secretary of State Frank LaRose and others.  
 
Comments on the audit report must be filed with the PUCO by October 22. Any replies are due November 5.
 

FirstEnergy fought for a federal bailout

Although Donald Trump’s presidential administration pushed for a massive bailout for coal and nuclear power plants, the Federal Energy Regulatory Commission ultimately rejected that bailout. But it wasn’t for lack of trying by FirstEnergy, a new report by the Energy and Policy Institute shows.
 
While much of the information in the report was previously known, various documents and details have only become public after Trump left office in 2020. He is the Republican nominee in this fall’s presidential election.
 
“The internal FirstEnergy records released this year after years of delays describe in shocking detail the lengths FirstEnergy went to as the utility lobbied for this bailout,” said Dave Anderson, author of the report. The issue is especially relevant now that Trump has made a campaign promise to slash energy prices in half, Anderson said.
 
The report tells about meetings and other communications between FirstEnergy executives and Trump, former Vice President Mike Pence, and others. It also notes that in 2017, FirstEnergy gave $5 million to America First Policies, a pro-Trump dark money group. That same year, FirstEnergy also hired a lobbying firm founded by Trump’s former campaign manager Corey Lewandowski. Lewandowski has denied working for FirstEnergy.
 

Congressional campaign attacks Team Householder candidate

U.S. House Rep. Marcy Kaptur has made HB 6 a campaign issue in ads attacking Republican challenger Derek Merrin. Merrin is finishing his fourth term in the Ohio House of Representatives. He voted for HB 6 in 2019.
 
Merrin also was among the “Team Householder” candidates listed on a government exhibit introduced last year at the criminal trial of former Ohio House Speaker Larry Householder. The government claimed Householder directed the use of dark money funds to help candidates whom he expected to support his bid to become speaker and then to pass a bailout for FirstEnergy.
 
One of Kaptur’s ads said Merrin increased Ohioans’ electric bills. Ohioans have paid more than a third of a billion dollars for HB 6’s coal plant subsidies so far. A separate ad noted Householder and his co-defendant Matt Borges went to prison but said Merrin “kept their money — nearly $20,000.”
 
Kaptur campaign spokesperson Josh Strassberger pointed to a 2024 Daily Beast article saying Merrin received a total of more than $17,000 from Householder’s campaign committee and from one of the dark money groups involved in the HB 6 corruption scandal. Strassberger also referenced campaign donation and spending records adding up to those amounts.
 
Energy News Network reached out multiple times to Merrin’s campaign office but has not received a response.
 
Merrin was not under a legal obligation to return funding from the dark money group or Householder’s campaign. Nor have any criminal allegations been made against him relating to HB 6.
 

Criminal cases continue

Householder was forced out of the Ohio House of Representatives in mid-2021, nearly a year after his arrest on the federal criminal charges. Yet the Friends of Larry Householder campaign committee is still active, with disbursements through early this year.
 
State records reflect multiple payments through last fall to the Pullins Law Firm as payments or retainers for legal services. Approximately $70,000 of that amount was paid out after Householder went to prison last year.
 
Lawyer Scott Pullins told the Columbus Dispatch, which uncovered the payments, that he represents Householder in two cases before the Ohio Elections Commission, as well as a civil lawsuit.
 
Pullins told the Energy News Network he had no further comment, adding that various questions dealt with privileged and confidential matters. Among other things, the Energy News Network asked what share of charges was for the civil lawsuit. Pullins’ appearance in the case was filed in August 2024, after other lawyers for Householder and the campaign committee had filed a motion that could end the case.

Refurbished Three Mile Island Payment
Structure Is Not Quite What It Seems

Steve Hanley

Two weeks ago, the news was filled with reports that Reactor 1 at the
Three Mile Island nuclear generating station, which was shut down in
2019, will be refurbished and put back into service for another 20 years or
more. Its sole customer will be Microsoft, which needs a lot of electricity
to  operate its data centers . Reactor 2 is the one that melted down in 1979.
It is in the process of being dismantled.
The Three Mile Island facility is currently owned by  Constellation
Energy,  the largest operator of nuclear power plants in America. It told

the  New York Times  it plans to spend $1.6 billion to refurbish Reactor 1
and restart it by 2028, pending regulatory approval. “The symbolism is
enormous,” said Joseph Dominguez, chief executive of Constellation. “This
was the site of the industry’s greatest failure, and now it can be a place of
rebirth.”

Economic Benefits Of Three Mile Island

Local residents and politicians welcome the return of Three Mile Island,
which will employ about 600 people when it restarts. “This will transform
the local economy and presents a rare opportunity to power our economy
with reliable clean energy that we can count on,” said Tom Mehaffie, a
Republican state representative whose district includes the plant. “This is a
rare and valuable opportunity to invest in clean, carbon-free and
affordable power — on the heels of the hottest year in Earth’s history.” A
recent poll found that 57% of Pennsylvania residents supported reopening
Three Mile Island “as long as it does not include new taxes or increased
electricity rates.”
Dominguez was especially proud to announce that Constellation would
pay to refurbish the Three Mile Island facility entirely out of its own
pocket, and Microsoft would be on the hook for buying electricity from the
plant for 20 years. “We’re not asking for a penny from the state or from
utility customers,” he said.
There is a lot to unpack here. The demand for electricity is exploding,
thanks to cryptomining and AI.  Data centers  are sucking up vast amounts
of electricity, much of it from renewables. That means there is precious
little electricity left over to cool our homes and business, power our
electric cars, or meet the needs of industries trying to decarbonize their
activities. Supplying the crypto and AI sectors with renewable energy
threatens to slow or reverse the transition to clean energy for the rest of
society. At some point, we may need to ask ourselves just how much
crypto and AI we really need.

A $1.6 Billion Federal Loan Guarantee

What Joseph Dominguez failed to mention when he proclaimed that
Constellation was not asking for a penny from the state or from utility
customers to restart Three Mile Island was that in May it applied for a $1.6
billion federal loan guarantee — which coincidentally is precisely the
amount of money it plans to invest to restart the shuttered reactor.
According to the  Washington Post , the taxpayer-backed loan could give
Microsoft and Constellation Energy a major boost in their unprecedented
bid to steer all the power from a US nuclear plant to a single company.
Microsoft is one of many large tech companies scouring the nation for
zero emissions power for its data centers and one of the leaders in the
field of artificial intelligence.
The plan to restart the shuttered reactor on Three Mile Island has already
generated controversy as energy experts debate the merits of providing
separate federal subsidies for the project in the form of tax credits.
Constellation’s pursuit of the $1.6 billion federal loan guarantee, which
has not been previously disclosed, is likely to intensify that debate. The
loan guarantee request has cleared an initial review. It has now reached
the stage where the specific terms of a deal would ordinarily start to be
negotiated, according to the Washington Post. A loan guarantee would
allow Constellation to shift much of the risk of reopening Three Mile Island
to taxpayers. The federal government, in this case, would pledge to cover
up to $1.6 billion if there is a default. The guarantees are typically used by
developers to lower the cost of project financing, as lenders are willing to
offer more favorable terms when there is federal backing.
Borrowing Costs For Three Mile Island

In this case, the loan guarantee could save Constellation up to $122
million in borrowing costs for restarting Three Mile Island, John Parsons,
an energy economist at the Massachusetts Institute of Technology, told
the Post. It would come on top of the federal tax credits on the sale of the
power — passed in the Inflation Reduction Act of 2022 — which could be
worth nearly $200 million annually for Constellation and Microsoft. Over
20 years, that comes to a tidy sum — $4 billion to be exact. Technology
companies already benefit from similar tax credits when they purchase
energy from a solar or wind farm, but nuclear power plants generate

electricity at a higher cost, making the scale of the subsidy larger.
Microsoft and Constellation have not released any details about how
much the electricity from Three Mile Island will cost.
The Energy Department declined to comment on the application, but
Constellation  told the Post it has not decided whether to accept the loan
guarantee if one is offered, but claimed that any financial risk for
taxpayers would be negligible. “Rest assured that to the extent we may
seek a loan, Constellation will guarantee full repayment,” said a statement
from the company. “Any notion that taxpayers are taking on risk here is
fanciful given that any loan will be backstopped by Constellation’s entire
$80-billion-plus value.” If that is so, then why the need for the federal loan
guarantee in the first place?
The biggest risk to taxpayers would be if the project were to fail after a
significant amount of money is spent trying to get Three Mile Island
operational. Such setbacks are common when new nuclear plants are
being built. The last new nuclear reactors to go online near Augusta,
Georgia, were seven years late and  $17 billion over budget . Constellation
says it is confident Three Mile Island won’t face such setbacks because the
company is restarting an existing unit rather than building a new one from
the ground up. Some may view that as wishful thinking, or as my old Irish
grandmother liked to say, “There’s many a slip twixt the cup and the lip.”
Proponents say reopening nuclear power plants is a good option,
especially with increased demand from data centers that are being built
across the country. “We want Microsoft to buy their electricity from zero-
carbon energy sources instead of from coal plants, so it is in the interest
of all of us that this nuclear power plant gets reopened,” John Parsons said
of the Three Mile Island plan. While the loan guarantee does have risks,
the reopening of an existing nuclear plant is far less likely to run into the
massive cost overruns and delays that are common with the construction
of a new nuclear plant, he added.

Another Kink In The Program

To hear Microsoft and Constellation tell it, every electron generated by the
rejuvenated Three Mile Island plant would be used to power Microsoft

data centers. That’s not quite how it will work out in practice, however.
The electricity from the restarted nuclear reactor will not be connected
directly to Microsoft’s data centers. Instead it will flow into the broader
power grid that serves 13 states and D.C. As the purchaser of the clean
energy, Microsoft can use it to erase — on paper — the emissions from
burning gas or coal to produce electricity that does flow into its data
centers. Microsoft is among several large tech firms using such accounting
methods to brand their data centers climate
friendly. CleanTechnica readers are savvy enough to recognize there is
great potential for all of this euphoria over Three Mile island to become
little more than another corporate greenwashing scheme, one paid for in
large part by federal taxpayers.
Some critics question if Constellation is presenting an overly optimistic
assessment of how quickly and cheaply a nuclear plant can be restarted.
The company said last month that $1.6 billion would cover the full cost of
reopening Three Mile Island by 2028. “We have one Big Tech company
trying to do something that is not aligned with how the markets should be
working, and they want to do it on the backs of ratepayers and taxpayers,”
said Evan Caron, co-founder of Montauk Climate, which invests in clean
energy technologies.
If there are any cost overruns or delays, Microsoft would probably have
the option of abandoning the deal and Constellation would need to find
another buyer willing to pay a premium for Three Mile Island power, he
said. “This has real risk. I think the likelihood of that plant coming back
online by 2028 is low to zero,” Caron said. Constellation bristles at the
suggestion. “We know every inch of this plant and what needs to be done,”
the company said in a statement. “To be clear, Constellation will restart
[Three Mile Island] in 2028, and in fact, we will aim to restart it a year
earlier.”

The Takeaway

There is nothing overtly wrong with the plan to restart Three Mile Island,
but when the details are examined, there certainly are some reasons to be

skeptical. First, when the company bragged it was putting its own money
unto the project, it should have been upfront about the federal loan
guarantee. Second, when Microsoft bragged it was increasing the supply
of renewable energy to its data centers, it should have been upfront about
how the process will actually work. In point of fact, none of the electricity
from Three Mile Island may ever be used to power a Microsoft data
center. There are carbon offsets and accounting shenanigans at work
here, which open the door to chicanery or what some might call “creative
accounting.”
At worst, both companies may have committed sins of omissions, little
white lies that take some of the luster off their bold plan to restart Three
Mile Island. Back in the George W. Bush era, this would be known as
“sideways waffling.” Both companies should know better than to tell part
of the story instead of the entire story. Shame on Microsoft and
Constellation for being a little less than completely honest about what
their plan entails. Being coy about such details make people wonder what
else they are hiding.

FERC IS SCARY:

A 24 Hour Haunting of FERC

Building on the success of our September actions the Unfrack FERC Coalition returns to the Federal Renewable Energy Commission office!


This time we’ll be holding a 24 hour Haunting of FERC- highlighting the horrors they have brought to the world!
 
We’ll be outside of FERC from 10/16- 10/17- with jacko lanterns, banners, and lots of snacks and warm clothes! You can join us noon to noon at 888 First St NE, Washington, DC 20426

! Stop by for an hour- or stay the night!
 
But you don't need to travel to D.C. to haunt FERC- you can help by calling FERC from home! Hop into the Phone Zap :)


In July and August the US Court of Appeals in DC struck at the heart of FERC's broken permitting process. In three separate decisions they ruled that FERC failed to consider climate change and environmental justice impacts for gas pipelines in New Jersey and Texas and three LNG gas export terminals in Louisiana and Texas.

 

We’re calling FERC and demanding they take immediate action on these court rulings. To date FERC has not taken any actions to halt the construction of these projects. 




You can also sign our petition which will be delivered to Chair Philips! We're already over 2,000 signatures!

 

Call In Info!

FERC Phone Numbers: 

General Commission
202-502-8004 or  866-208-3372 (Toll-Free)
Chair Willie Philips
202-502-8550
(202) 489-6372 (personal cell)
Commissioner Mark Christie: 
202-502-8110
Commissioner David Rosner
202-502-6500
(917) 353-9892 (personal cell)
Commissioner Lindsay S. See
(248) 719-2868 (personal cell)
Commissioner Judy W. Chang
(301) 424-7842 (personal home)
Office of Public Participation
202-502-6595
Environmental Justice and Equity Group
202-502-8004
Toll-free: 1-866-208-3372
 
Sample Call In Prompt:

Hi this is ____ from ______, I’m calling for _____. 

In July and August the DC Circuit Court of Appeals vacated FERC’s certificates for the Texas LNG, Rio Grande LNG, Regional Energy Access and projects- due to FERC’s lack of consideration on greenhouse gas emissions and environmental justice analysis. Commonwealth LNG was remanded for similar reasons. 

We demand that FERC take immediate action- follow the legal demands of the D.C. Circuit Court- halt all construction and reject these projects for their impacts on the climate and marginalized communities. 

Reject all new fossil fuel projects and move towards decarbonization and renewable energy sources!


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.

 ​​​​​​​

https://files.constantcontact.com/abc65024401/7ee258bf-32c2-48a3-bbd6-c0cec7c545aa.jpg?rdr=true

Beyond Nuclear Bulletin
October 10, 2024


NRC RELICENSING IN COURT 
GEIS ignores climate change
 
On October 7, 2024, Beyond Nuclear and Sierra Club filed a Petition for Review to the US Court of Appeals for the District of Columbia challenging the US Nuclear Regulatory Commission’s (NRC) new final rule to restrict environmental review standards for Initial License Renewal of 40 to 60 years and an additional 20-year license extension under the Subsequent License Renewal process for 60 to 80 years of operation. The Petitioners contend that under the National Environmental Policy Act and Administrative Procedures Act, NRC may not lawfully apply their conclusions for a mandatory Generic Environmental Impact Statement (GEIS) in the NRC license renewal proceedings because they are irrational, unreasonable, incomplete, unsupported, and arbitrary and capricious, particularly by ignoring climate change impacts (see story below).
 
 
 

SCOTUS CERT.
Appeals on CISFs continue

On October 4, the Supreme Court of the U.S. granted certiorari on appeals brought by the Nuclear Regulatory Commission (NRC), DOJ, and both dump companies targeting Texas and New Mexico for highly radioactive waste consolidated interim storage facilities. These Petitioners are challenging a ruling by the 5th Circuit Court of Appeals in New Orleans, which vacated NRC's license approvals for Interim Storage Partners, and Holtec. 
Beyond Nuclear and environmental allies have consistently lost their appeals at the D.C. Circuit. The State of NM likewise lost at the 10th Circuit based in Denver. But Fasken Land and Minerals, and the State of TX, have won rulings at the 5th since August 2023. Oral arguments will likely be in early 2025.
 
 
NRC SNUBS GAO REPORT
Ignores climate warning
 
On September 27, 2024, the Nuclear Regulatory Commission’s (NRC) Chairman Christopher Hanson dismissed the findings of an April 02, 2024 U.S. Government Accountability Office (GAO) report [GAO-24-106326], "Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change.” The government report warns the NRC to incorporate climate data projections into its licensing and factor climate crisis impacts on reactor safety. The Chairman concluded that the agency does not need to additionally project climate impacts in its current day-to-day oversight and licensing of reactor operations. In fact, NRC's environmental review process only looks at carbon emissions impacts of reactor operations on climate and not climate impacts on reactor safety as a consequence of more severe and frequent climate driven events.
 
 
 
 
 
 
 
ZOMBIE NUKES?!
Coalition intervenes against MI nuke restart
 
By the October 7 deadline, five environmental groups petitioned to intervene and requested a hearing in their effort to block Holtec's application to restart the closed for good Palisades atomic reactor, located on southwest Michigan's Great Lakes shore. The scheme is unprecedented, unneeded, extremely high risk for health, safety, and the environment, and insanely expensive for the public. 
 
The coalition includes Beyond Nuclear, Don't Waste MI, MI Safe Energy Future, Nuclear Energy Information Service (NEIS), and Three Mile Island Alert (TMIA).NEIS points out Palisades threatens Lake Michigan, the drinking water supply for 16 million people, including the City of Chicago. TMIA hopes to nip zombie reactors in the bud, as Three Mile Island Unit 1 is next in line.
 
Read More

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Nuclear Regulatory Commission - News Release
No: 24-076 October 10, 2024

NRC Names New Deputy Executive Director for Operations and New Director, Office of Nuclear Security and Incident Response

The Nuclear Regulatory Commission today announced Robert Lewis as Deputy Executive Director for Operations, in the areas of materials, waste, research, state, tribal, compliance, administration, and human capital programs, and Craig Erlanger as Director of the Office of Nuclear Security and Incident Response. Both are effective Oct. 20, 2024.
 
Lewis has 32 years of experience at the NRC, including specialization in waste management, nuclear fuel cycles, risk assessment, transportation, and emergency preparedness and response. Since 2019, he has served as Deputy Director of the Office of Nuclear Material Safety and Safeguards.
 
Prior to that, he served as the Assistant for Operations in the Office of the Executive Director for Operations, where he led many aspects of NRC’s recent efforts to modernize and transform its business practices and represented the United States on the International Atomic Energy Agency’s Commission on Safety Standards. He has also served as Director of the Division of Preparedness and Response, in NSIR, where he oversaw post-Fukushima changes to NRC and licensee emergency management programs and improved integration of NRC activities into the national response framework.
 
A graduate of the NRC’s Technical Intern Program, Leadership Potential Program and Senior Executive Service Candidate Development Program, Lewis earned a bachelor’s degree in physics from the State University of New York at Fredonia, and a master’s degree in nuclear engineering from the University of Arizona. He is a graduate of the Executive Leaders Program of the Naval Postgraduate School’s Center for Homeland Defense and Security.
 
Erlanger joined the NRC in 2004 as a security specialist. He has held numerous positions throughout the NRC since, including serving as an NSIR Branch Chief, where he was a key contributor to implementation of risk-informed, performance-based cyber security for reactors, and managed integrated response and fuel cycle and transportation security. Among his most notable contributions to the NRC mission were his efforts during the COVID-19 Public Health Emergency where he led integral elements of the agency’s comprehensive regulatory response to the global pandemic.
 
Since joining the Senior Executive Service in 2014, he has served as both the Deputy Director and Director of the Division of Fuel Cycle Safety, Safeguards and Environmental Review in NMSS and head of the Division of Operating Reactor Licensing in the Office of Nuclear Reactor Regulation. Most recently, he was the Deputy Director and Acting Director of NSIR.
 
Prior to joining the NRC, Erlanger worked in the private sector for a consulting firm focusing on physical security vulnerability assessments and business continuity programs. He also served more than 20 years in the U.S. Marine Corps in both active and reserve duty roles.
 
Erlanger earned a bachelor’s degree in political science from the U.S. Naval Academy and a master’s degree in business administration from American University. He is a graduate of the NRC’s Leadership Potential Program and SES Candidate Development Program, and a recent graduate of the Center for Homeland Defense and Security Executive Leaders Program at the Naval Post Graduate School.
 
Nuclear Regulatory Commission - News Release
No: 24-075 October 10, 2024
CONTACT: David McIntyre, 301-415-8200

NRC Seeks Presentation Proposals for Virtual Workshop on Storage and Transportation of Spent Fuels for Advanced Reactors

The Nuclear Regulatory Commission is seeking presentation proposals for a public virtual workshop to be held Dec. 3-5 on storage and transportation of spent nuclear fuels for advanced reactor designs now under development.
 
The workshop is being held in coordination with the Department of Energy’s Office of Nuclear Energy and the Electric Power Research Institute, with assistance from the Center for Nuclear Waste Regulatory Analyses of San Antonio, Texas. The deadline for submitting proposed presentations is Nov. 7.
 
With the nuclear industry developing advanced reactor designs with new fuels, the workshop will explore how these new fuels will meet the NRC’s requirements for safe storage and transportation of spent fuel once they are removed from a reactor. Specific topics on the agenda include physical behavior of fuel and containers (structural integrity, materials performance); nuclear physics; and current regulations and guidance.
 
Instructions for submitting proposed presentations and for registering for the 2024 Workshop on Storage and Transportation of TRISO and Metal Spent Fuels can be found in a brochure on the NRC website and on the workshop website.

 NEWS FROM BEYOND NUCLEAR

For immediate release 

Contact: Kevin Kamps, radioactive waste specialist, Beyond Nuclear, Kalamazoo, MI, (240) 462-3216,   kevin@beyondnuclear.org

Michael Keegan, co-chair, board of directors, Don’t Waste Michigan, Monroe, MI, (734) 770-1441, mkeeganj@comcast.net

Eric Epstein, chair, Three Mile Island Alert, Harrisburg, PA, (717) 635-8616, epstein@efmr.org

David Kraft, Director, Nuclear Energy Information Service, (773) 342-7650, neis@neis.org


(Media reporters wishing to speak with Arnie Gundersen, chief engineer of Fairewinds, can do so by contacting Kevin Kamps, above.)

Environmental Coalition Intervenes Against Palisades Atomic Reactor Restart
Groups Warn of Safety Risks of Unprecedented, Expensive "Nuclear Zombie" Scheme

COVERT TOWNSHIP, MI and WASHINGTON, D.C., OCTOBER 8, 2024--A safe energy watch-dog coalition* filed a petition to intervene with the U.S. Nuclear Regulatory Commission, and requested a hearing, in opposition to Holtec International's unneeded Palisades nuclear power plant restart scheme on Lake Michigan's southeastern shore in Van Buren County. The petition, backed by expert witness Arnold Gundersen, chief engineer of Fairewinds Associates, Inc., warns of the extreme risks to safety, security, health, and the environment resulting from the more than 50-year old atomic reactor's severe age-related degradation, as well as its owner, Holtec's, utter inexperience operating a nuclear plant. (See a summary of Gundersen's declaration, below.) In terms of global warming mitigation, the coalition's petition also cites the significant opportunity costs of investing many billions of dollars of public subsidies into restarting Palisades, based on expert witness Dr. Mark Z. Jacobson of Stanford University's expert declaration on the reliable, cost-effective, and quick deployment potential of such clean energy sources as renewables like wind and solar power, storage, and efficiency.

"Palisades is the flagship for this latest attempted nuclear relapse, and it is circling the drain. Constellation at TMI Unit 1 would be wise to cut its losses now and not follow Palisades into the abyss. The flagship Palisades has hit an iceberg. Three Mile Island Alert stands in opposition to the Palisades and TMI-1 closed reactor restarts, which is why we have joined this intervention," said Eric Epstein, chair of TMIA in Harrisburg, PA. The organization was founded in 1977, two years before the infamous 50% meltdown at TMI-2 on March 28, 1979, the worst commercial atomic reactor disaster in U.S. history.

"All the king's horses, and all the king's men, will court disaster if they try to run Palisades again," said Alice Hirt of Holland, MI, intervenor on behalf of Don't Waste Michigan, a statewide, grassroots nuclear watch-dog group for the past four decades.

"Lake Michigan is the drinking water supply for 16 million people in four states, including the City of Chicago," said David Kraft, director of Nuclear Energy Information Service, watch-dog on Illinois' nuclear industry for more than four decades. "Whether routinely discharging radioactive, toxic chemical, or thermally hot wastewater into the Lake, as well as the risk of a Fukushima or Chornobyl-scale catastrophe, Palisades' restart threatens the future of the Great Lakes, 21% of the entire planet's surface freshwater," Kraft added.

SUMMARY OF DECLARATION BY NUCLEAR ENGINEER ARNOLD GUNDERSEN

Entergy, Palisades’ prior owner, gave up the nuclear power plant’s operating license because using the dilapidated and ramshackle reactor was unprofitable.  Entergy knew the reactor was unprofitable for at least half a decade before plant closure, so the corporation neglected critical repairs and long-term maintenance investments, anticipating closure in 2022.

Instead of safeguarding Palisades’ valuable components as the facility neared its 2022 closure date, Entergy allowed the plant to deteriorate further.  It sold Palisades to Holtec as scrap with useless components meant to be dismantled and destroyed.

Holtec Decommissioning International (HDI) is an industrial demolition contractor with no nuclear power plant design, engineering, construction, or operations experience.

Holtec Palisades acknowledges that Palisades' reactor’s physical condition is severely degraded.

Using billions of dollars in Federal and State subsidies and none of its own cash assets, Holtec is attempting to grab funding to resurrect the 53-year-old derelict Palisades atomic reactor.

A resurrection like the one planned for the Holtec Palisades facility is a preeminent construction project and a feat that has never been attempted anywhere else.

The Holtec Palisades site, reactor, and crucial electric generating components are unsafe and incapable of reuse due to their poor condition and permanent flaws. More importantly, most experienced staff left when the plant closed, and the entire Quality Assurance (QA) program was destroyed, meaning that every component, wire, electric bulb, etc., must be reevaluated and tested.  Holtec Palisades claims it will replace all Palisades’ staff and operate the defective and decimated reactor facility for 25 years.

 

Furthermore, the degraded condition of every aspect of this nuclear power plant, the lack of a long-term experienced, skilled staff, and the non-existent QA and management oversight programs that should be hallmarks of our country’s nuclear safety and licensing process and programs are sadly lacking at Holtec Palisades.

 

Additionally, should this decrepit and defective scrapped reactor somehow achieve licensure, its electricity will be too expensive to compete against renewable power sources. Thus, Holtec will demand additional subsidies from additional federal agencies and the State of Michigan to keep its aged and scrapped Palisades operating unsafely again.

Holtec and the NRC's licensing approach violates [Title 10, Code of Federal Regulations, Part 50.59]. Palisades should not be allowed to restart unless it complies with all the regulations of 10 CFR 50.59, has completed all costly plant modifications, and meets all 21st-century licensing criteria.

The reincarnation of the Palisades atomic power plant by Holtec Decommissioning International as Holtec Palisades violates 10 CFR 50.59. This is not an issue for legal scholars or the NRC but is part of the problem in the NRC’s overwhelming desire to operate nuclear plants no matter what the safety and financial costs are to the people of the United States (U.S.).

In particular, it is essential to understand that NRC Commissioner Crowell has recognized that Entergy terminated the old Palisades operating license and that the permit cannot be reissued to Holtec without Palisades meeting the new, more stringent safety criteria of the 21st Century. He said, that Holtec Palisades needs to "start from scratch." Furthermore, NRC Commissioner Crowell added, “Certainly, the entire operation of the plant needs to be reassessed,” Crowell said. “It’s not the same as a refueling outage, and it’s not the same as a license renewal...I feel like it’s difficult to get our ducks in a row for that because it changes almost on a monthly basis...I understand they [Holtec] are in a posture of wanting to find a buyer to do it...but I think at this stage of the game, you’re gonna have to start from scratch." (Exchange Monitor, 2/7/2023)

*The coalition includes: Beyond Nuclear; Don't Waste Michigan; Michigan Safe Energy Future; Nuclear Energy Information Service of Chicago; and Three Mile Island Alert of Harrisburg, PA. Terry J. Lodge of Toledo, OH, and Wallace L. Taylor of Cedar Rapids, IA, serve as the coalition's legal counsel.

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Holtec knew of problems with Palisades' steam generator tubes before $1.52B loan finalized

Tom Henry
The Blade
 
Oct 5, 2024
3:28 PM
 
Two days after the Biden Administration finalized a $1.52 billion federal loan to Holtec International in support of its historic effort to restart the mothballed Palisades nuclear plant, the U.S. Nuclear Regulatory Commission released a document that shows the company had conceded almost a month earlier that the number of cracks and flaws on the plant’s steam generator tubes “far exceeded estimates.”
 
The newly released document, made public by the NRC on Wednesday, is a summary of a Sept. 3 conference call between the federal regulator overseeing the nuclear plant and Holtec, the company that purchased it with hopes of making it the first in nuclear history to be put back into service after decommissioning had begun.
 
The document states that inspections to date have revealed some 1,417 indications of tiny cracks or flaws in the tubes. It states that 701 tubes in one steam generator and 248 in another are candidates for repairs or plugging.
 
Nick Culp, Holtec Palisades senior manager of government affairs and communications, told The Blade in a telephone interview Friday morning and in a follow-up email afterward that the company is committed to making all necessary repairs to ensure safety and that the latest information will not derail it from its timetable of getting Palisades back in operation by the fall of 2025.
 
Tubes that require maintenance “will get plugged or sleeved,” he said.
 
“Each one is unique,” Mr. Culp said of the flaws.
 
The company’s email emphasizes collaborations with “outside industry-leading partners” to ensure the most appropriate corrective actions are taken.
 
“We expected to find areas requiring additional maintenance activities during our proactive inspections and planned for this contingency,” the email states. “These findings are being addressed as part of our comprehensive restart maintenance strategy, which will require further inspections, testing, and repairs.”
 
But Alan Blind, who was the engineering director at Palisades from May of 2006 through February of 2013 when it was owned by Entergy, told The Blade he knows the NRC well enough to believe that the regulator won’t stand for an unlimited number of repairs.
 
 
At some point, Holtec will likely learn that its best path toward getting the NRC’s authorization for a restart would be by replacing the steam generators, a project that would cost as much as $500 million and delay restart efforts by about two years, Mr. Blind said.
 
He said he experienced the dilemma after he left Palisades and became a site vice president at the former Indian Point nuclear plant complex in New York. That facility eventually replaced its steam generators after trying to repair them for years.
 
“We’re not there yet,” Mr. Culp said when asked what it would take to make that kind of a decision at Palisades.
 
The NRC knows that the failure rate for steam generator tubes can increase exponentially in a short period of time, Mr. Blind said.
 
“It’s the rate of degradation,” he said. “You can’t prove it.”
 
The Sept. 3 call summary “provides a snapshot of Holtec’s findings at that time,” said Viktoria Mitlyng, NRC spokesman.
 
Regardless what action Holtec takes, the “stress corrosion crack indications must be appropriately addressed to maintain the generator’s pressure boundary,” she said.
 
“We expect to receive an analysis of the Holtec’s steam generator inspection results and a path forward to address the analyzed condition of the steam generators tubes,” Ms. Mitlyng said.
 
Palisades was shut down and put in its decommissioning phase in May, 2022, after more than 51 years of operation.
 
No plant has ever been put back into service after decommissioning began.
 
Holtec was hired by the plant’s previous owner, Entergy, to decommission it.
 
It began doing that, then switched gears and bought the plant with the intention of trying to put it back into service. Holtec applied to the U.S. Department of Energy a year ago this month for a loan to restart Palisades. It was notified last March that the Biden Administration was offering $1.52 billion and closed on the deal Monday.
 
Holtec has never operated a nuclear plant.
 
Palisades is along the Lake Michigan shoreline, about 200 miles from Toledo.
 
On Sept. 20, Constellation Energy Co. announced it has made a deal with Microsoft to attempt a restart of the mothballed Three Mile Island Unit 1 nuclear plant in eastern Pennsylvania. That project follows Palisades as the second effort to put a mothballed nuclear plant back into service.
 
In related news, the NRC staff has scheduled a 90-minute meeting for Oct. 24 with Holtec Decommissioning International to discuss resolution of an outstanding issue at Palisades. The public can view it online or in person at the NRC’s headquarters in Rockville, Md.
 
First Published October 5, 2024, 3:28 p.m.

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