State of New Hampshire v. Atomic Energy Commission, 7142.

• Decision Date: 13 January 1969
• Docket Number: No. 7142.,7142.
• Citation: 406 F.2d 170
• Parties: The STATE OF NEW HAMPSHIRE, Petitioner, v. ATOMIC ENERGY COMMISSION and United States of America, Vermont Yankee Nuclear Power Corporation, Intervenor.
• Court: U.S. Court of Appeals — First Circuit

406 F.2d 170 (1969)

The STATE OF NEW HAMPSHIRE, Petitioner, v. ATOMIC ENERGY COMMISSION and United States of America, Vermont Yankee Nuclear Power Corporation, Intervenor.

No. 7142.

United States Court of Appeals First Circuit.

Heard December 3, 1968.

Decided January 13, 1969.

R. Peter Shapiro, Sp. Counsel, Concord, N. H., for petitioner.

Marcus A. Rowden, Asst. General Counsel, with whom Joseph F. Hennessey, Gen. Counsel, Howard K. Shapar, Asst. Gen. Counsel, Licensing & Regulation, William C. Parler, Atty., Atomic Energy Commission, Edwin M. Zimmerman, Asst. Atty. Gen., and Seymour H. Dussman, Atty., Dept. of Justice, were on brief, for Atomic Energy Commission and others, respondents.

Warren F. Farr, John A. Ritsher, and Ropes & Gray, Boston, Mass., on brief, for Vermont Yankee Nuclear Power Corp., intervenor.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

The state of New Hampshire seeks review of an order of the Atomic Energy Commission (AEC), granting a provisional construction permit to the Vermont Yankee Nuclear Power Corporation, organized by ten New England utility companies (applicant), to build a nuclear power reactor at Vernon, Vermont, a site on the Connecticut River, bordering New Hampshire. The permit was issued at the conclusion of a reactor licensing proceeding held under the authority of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2011 et seq.

The narrow but important issue is whether the Commission erred in refusing to consider, as outside its regulatory jurisdiction, evidence of possible thermal pollution of the Connecticut River as a result of the discharge of cooling water by applicant's facility. The proposed installation, a "boiling water" reactor, differs from a conventional electric power plant in that the turbine generators which produce the electrical energy are driven by steam derived from the heating of water by the fissioning of uranium in the reactor core. "Thermal pollution" is used to designate the effects on a river — its water, flora and fauna — of the injection of heated water.

Applicant's application, filed on December 2, 1966, was subjected to review by the Commission's staff, in the course of which eight amendments were added, and by the Advisory Committee on Reactor Safeguards. At the subsequent public hearings before an atomic safety and licensing board, the states of New Hampshire, Vermont, and Massachusetts were granted leave to intervene. All three states sought to introduce evidence intended to show that operation of the facility without a cooling tower system for reducing the temperature of water discharged into the river would harm the natural resources of the river.¹ The board ruled such evidence inadmissible on the grounds that it related to matters beyond the Commission's jurisdiction, was proscribed by the Commission's Rules of Practice, and was not directed to the issues noticed for hearing.

The hearing occupied four days, August 1 and 2, and September 6 and 7, 1967. On the fourth day, applicant noted during the hearing for the first time that it would expand the proposed facility to include cooling towers in its open cycle system. It thereafter made three subsequent written submissions on this aspect of its plans. These were reviewed by the Commission's regulatory staff and the Advisory Committee on Reactor Safeguards solely for their impact on radiological health and safety and were found satisfactory. The three states contended that the supplemental evidence was incomplete and in insufficient detail, that the addition of the towers might not enable the facility to meet the newly evolving water quality standards for the river, and that more safety precautions might ultimately be required. The board concluded that, notwithstanding the possibility that some changes might later be necessary, a provisional construction permit could be issued. It issued its initial decision, finding favorably for applicant on the issues of public health and safety "within the meaning of those terms as authorized by the Commission".

New Hampshire filed exceptions to this decision, contending that the Commission had responsibility for considering the effects of thermal pollution, not only under the Atomic Energy Act of 1954, but also under the Water Quality Act of 1965, P.L. 89-234, and Executive Order 11288 (31 F.R. 9261). The Commission denied the exceptions, relying on sections of the Atomic Energy Act relating to findings, purpose, and definitions; Congressional statements and subsequent amendments; its own regulations and rules of practice and its own adjudications. It held that neither the Water Quality Act of 1965 nor Executive Order 11288 were applicable to installations which it did not own or operate.

The Commission pointed out that no licensing action on its part relieved a licensee from any obligation to comply with state authorities or the Federal Water Pollution Control Administration of the Department of the Interior which do have jurisdiction to deal with thermal effects of power plant discharges. Its own efforts, pending action on legislative proposals to enlarge the authority of the Commission and other federal agencies, are limited to forwarding recommendations relating to thermal effects received from other federal agencies to applicants and state and local authorities and encouraging cooperation by the applicant with the proper governmental agencies.

We confront a serious gap between the dangers of modern technology and the protections afforded by law as the Commission interprets it. We have the utmost sympathy with the appellant and with the sister states of Massachusetts and Vermont which took the same position before the Commission. That position was simply that adequate planning be required of the applicant before a construction permit is issued in order to assure all feasible protection against thermal pollution instead of waiting until heavy investment has been made, and damage has occurred or is imminent.² To delay the day of reckoning is to invite the unnecessary dilemma of choosing between harming natural environment, with harmful effects on even the health and well being of humans, and frustrating the needed production of power.

In a sense there is no statutory chasm. The Atomic Energy Act itself is replete with many references to "health and safety of the public".³ But in its section on definitions, defining twenty-nine terms, 42 U.S.C. § 2014, including "common defense and security", any attempt to delimit "health" and "safety" of the public is singularly in absentia. There is therefore considerable appeal to New Hampshire's plea that we ascribe to these terms their present day plain meaning, which would not exclude all of the alleged adverse effects attributed to thermal pollution (e.g., those having to do with reducing the waste assimilative capacity of the river).

Tempting as it may be, we do not presently feel that we fulfill our function responsibly by simply referring to the dictionary. This is perhaps a more legitimate occasion than most for invoking Mr. Justice Holmes' aphorism that "A page of history is worth more than a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921). Or, conceding that there is a gap, an open space, between the law as interpreted by the Commission and by the Congress, and a demonstrable social interest, we may well be mindful of Mr. Justice Cardozo's admonitory gesture, "Even within the gaps, restrictions not easy to define, but felt, however impalpable they may be, by every judge and lawyer, hedge and circumscribe his action." Cardozo, The Nature of the Judicial Process, p. 114.

Here we feel a very palpable restriction in the history surrounding the problem addressed by the Congress, the subsequent Congressional confirmation of the limited approach taken by the Commission, the contemporary efforts in the Congress to broaden that approach, and a recognition of the complexity of administrative arrangements which would attend a literal definition of public health and safety as these terms are used in the Atomic Energy Act.

The history of the 1954 legislation reveals that the Congress, in thinking of the public's health and safety, had in mind only the special hazards of radioactivity.⁴ Moreover, we note the very special relationship, crystallized in statutory form between the Commission and the Joint Committee on Atomic Energy — a relationship that is rarely embodied in positive law. 42 U.S.C. § 2252.⁵ The Joint Committee, in its first study report, made its focus clear when it said, "The special problem of safety in the atomic field is the consequence of the hazards, created by potentially harmful radiations attendant upon atomic energy operations." Joint Committee Print, A Study of Atomic Energy Commission Procedures and Organization in the Licensing of Reactor Facilities, 85th Cong., 1st Sess., p. 4 (1957).

The Commission has been consistent in confining itself to these hazards. Its regulations as to licensing and standards have specified the objective as eliminating radiological danger. 10 C.F.R. Parts 20, 70, 100. Its adjudications have been bottomed on a similar concern. See, e. g., Matter of Consolidated Edison Company, Nov. 24, 1965 (3 AEC 62); Matter of Jersey Central Power and Light Company, May 6, 1965 (3 AEC 28). Its Rules of Practice have proscribed, as a nonjurisdictional matter, "the thermal effects (as opposed to the radiological effects) of the facility operation on the environment". 10 C.F. R. Part 2, Appendix A. III(c) (7). The Joint Committee has not, so far as we have been led to believe, disapproved of this concept of the Commission's concern.

Subsequent amendments, perfected and attempted, shed additional light on the delineation of scope intended by the Congress. In 1959 the Congress provided for the Commission's relinquishing to the states control over...