Disbelief was our first reaction upon hearing that Holtec, the multi-national corporation using public funds to decommission the Pilgrim Nuclear Power Station planned to use Cape Cod Bay as a dumping ground for radioactive waste. Disbelief quickly turned to outrage, and from that came a resolve to use all legal means available to us to protect the bay. Although litigious only as a last resort, APCC hired an expert legal team and went to work. The result of several months of legal analysis was recently presented to the administration of Governor Maura Healey for its consideration. APCC has requested that the Commonwealth invoke the state’s authority under the Ocean Sanctuaries Act to stop the discharge of radioactive wastewater from the Pilgrim Nuclear Power Station into Cape Cod Bay by Holtec International. APCC’s analysis demonstrates that the only legal option available to the Commonwealth is to deny the permit application.
APCC provided a legal analysis showing that the Ocean Sanctuaries Act—or OSA—expressly prohibits new industrial discharges of pollutants into waters, including Cape Cod Bay, covered by the act, except in certain narrow exceptions that are not applicable to Holtec’s proposal.
The letter, drafted on behalf of APCC by its legal representatives at Sugarman, Rogers, Barshak & Cohen, P.C., demonstrates that the issuance to Holtec of any state permit, authorization, or approval for a discharge would be inconsistent with the OSA. The letter explains that “Holtec’s proposed discharge is not eligible for a new or modified Massachusetts Surface Water Discharge Permit, or for a new or modified state Water Quality Certification,” which Holtec applied for last week. The further letter states that “Holtec’s discharge cannot be considered an ‘existing discharge’ as defined by the statute. This exception 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.’”
APCC maintains that Holtec’s proposed radioactive release of water used in decommissioning is not a permittable discharge because it was not preexisting when the Cape Cod Bay Ocean Sanctuary was created in 1971. Because the water proposed to be discharged is associated with the decommissioning process after Pilgrim ceased operations and associated discharges, the proposed new discharge cannot be considered “operation and maintenance” of an active power generation facility and therefore must be viewed as a new industrial discharge. A new discharge cannot be authorized by any state agency, according to the OSA, regardless of the policies of the Nuclear Regulatory Commission.
Our analysis shows clearly that the proposed Holtec discharge of water to Cape Cod Bay is illegal under the state Ocean Sanctuaries Act. This prohibition is based on a clear and plain reading of the law and does not require proof of harm to be enforced. APCC has demonstrated to the Healey administration that it not only has the ability, but also the obligation, to deny Holtec’s permit application. We trust that the administration will fulfill its commitment to block this proposed abuse of Cape Cod Bay and place this distraction aside so that the serious work of completing decommissioning can proceed.
The proposed use of Cape Cod Bay as a waste dumping ground was always a cynical attempt by a huge multinational conglomerate to profit at the expense of Cape Cod Bay, as well as the people of southeastern Massachusetts and Cape Cod, for whom a healthy bay is an economic lifeline. APCC is committed to protecting Cape Cod Bay for current and future generations and we are grateful to Gov. Healy and Attorney General Andrea Campbell for being open to our analysis. It is time for this outrageous proposal to be denied once and for all.
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