406 F.2d 170 (1st Cir. 1969), 7142, State of New Hampshire v. Atomic Energy Commission

Docket Nº:7142.
Citation:406 F.2d 170
Party Name:The STATE OF NEW HAMPSHIRE, Petitioner, v. ATOMIC ENERGY COMMISSION and United States of America, Vermont Yankee NuclearPower Corporation, Intervenor.
Case Date:January 13, 1969
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 170

406 F.2d 170 (1st Cir. 1969)

The STATE OF NEW HAMPSHIRE, Petitioner,

v.

ATOMIC ENERGY COMMISSION and United States of America, Vermont Yankee NuclearPower Corporation, Intervenor.

No. 7142.

United States Court of Appeals, First Circuit.

January 13, 1969

Heard Dec. 3, 1968.

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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

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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 the 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

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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...

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