Appeal of Town of Hampton Falls

• Decision Date: 26 July 1985
• Docket Number: No. 84-180,84-180
• Citation: 498 A.2d 304,126 N.H. 805
• Parties: Appeal of TOWN OF HAMPTON FALLS (New Hampshire Water Supply and Pollution Control Commission).
• Court: New Hampshire Supreme Court

Page 304

498 A.2d 304

126 N.H. 805

Appeal of TOWN OF HAMPTON FALLS (New Hampshire Water Supply and Pollution Control Commission).

No. 84-180.

Supreme Court of New Hampshire.

July 26, 1985.

Casassa, Mulherrin & Ryan, Hampton (John J. Ryan on brief and orally), for the Town of Hampton Falls.

Sulloway, Hollis & Soden, Concord (Robert M. Larsen on brief and orally), for Public Service Co. of N.H.

Shaines, Madrigan & McEachern, Portsmouth (John H. McEachern on brief and orally), for the Town of Hampton, as amicus curiae.

DOUGLAS, Justice.

In this appeal from a decision of the New Hampshire Water Supply and Pollution Control Commission (WSPCC), we are asked to determine whether the WSPCC erred in ruling that the circulating water discharge tunnel at Seabrook Station reduces and controls thermal discharge pollution and, therefore, is exempt from real property taxes under RSA 72:12-a (Supp.1983). We affirm.

In January 1982, Public Service Company of New Hampshire (PSNH), representing all of the owners of the Seabrook Station, a nuclear-fueled electric generating station under construction in Seabrook, applied to the WSPCC for a property tax exemption, pursuant to RSA 72:12-a (Supp.1983), for seven otherwise taxable water pollution control facilities installed or partially constructed at Seabrook Station. The WSPCC, on July 14, 1982, denied tax exemptions as to four of the facilities on the basis that they were not complete and operational and, hence, were not eligible for exemption under RSA 72:12-a (Supp.1981). This court, in a decision rendered on October 24, 1983, concluded that partially completed facilities are eligible for tax exemption "where the purpose of the facility is readily ascertainable and within the coverage of RSA 72:12-a (Supp.1981)," and remanded the matter to the WSPCC for further consideration. Appeal of Public Serv. Co. of N.H., 124 N.H. 79, 82, 89, 470 A.2d 855, 856, 861 (1983).

On January 11, 1984, PSNH filed with the WSPCC an updated application for a property tax exemption for the four remaining taxable water pollution control facilities. The WSPCC held a hearing on the matter on January 12, 1984, at which time testimony regarding the tax exemption eligibility of the facilities was received from interested parties. In a decision dated February 2, 1984, the WSPCC granted the requested exemption as to all four facilities. The Towns of Hampton Falls and Seabrook filed motions for rehearing, which were denied.

This appeal, brought by the Town of Hampton Falls (town) pursuant to RSA 541:6, challenges only the WSPCC's granting of a complete exemption from real estate taxes of the circulating water discharge tunnel. On appeal, the town advances two claims in support of its argument that the WSPCC erred in granting a complete tax exemption with respect to the circulating water discharge tunnel. The town argues first that the circulating water discharge tunnel is not a pollution control device within the meaning of RSA 72:12-a (Supp.1983). Alternatively, the town maintains that the facility is not entitled to a complete tax exemption under RSA 72:12-a (Supp.1983).

The circulating water system, or condenser cooling system, consists of 19-foot-diameter reinforced concrete intake and discharge tunnels, a pumphouse and a piping system interconnecting these components. It is a "once-through system" that provides cooling water to the main condensers of Seabrook Station. The circulating water system uses sea water from the Atlantic Ocean to cool the condenser in the steam cycle and to remove the heat. The intake tunnel, which is 17,160 feet in length, draws the sea water into Seabrook Station. The discharge tunnel, the facility at issue in this appeal, carries the heated water from the plant and, through the use of diffusers, disperses the heated water rapidly into the ocean, cooling the effluent, which is approximately 39 degrees above ambient when it leaves the plant. The discharge tunnel is approximately 16,500 feet in length, extending from the plant into the Atlantic Ocean. Portions of the tunnel run through the towns of Seabrook, Hampton and Hampton Falls.

We turn first to the town's argument that the circulating water discharge tunnel is not a pollution control device within the meaning of RSA 72:12-a (Supp.1983). This presents two subsidiary questions: Whether the thermal discharge is "pollution" and, if so, whether the discharge tunnel controls the pollution in a manner consistent with the purpose of RSA 72:12-a (Supp.1983). That section, entitled "Water and Air Pollution Control Facilities," provides in part:

"Any person, firm or corporation which builds, constructs, installs or places in use in this state any treatment facility, device, appliance or installation wholly or partly for the purpose of reducing, controlling or eliminating any source of air or water pollution shall be entitled to have the value of said facility and any real estate necessary therefor, or a percentage thereof determined in accordance with this section, exempted from taxes levied under this chapter for a period of 25 years."

At the outset, we note that we will construe RSA 72:12-a (Supp.1983) "to give full effect to the legislative intent of the statute." Appeal of Public Service Company of New Hampshire, 124 N.H. 79, 83, 470 A.2d 855, 857 (1983). In Appeal of Public Serv. Co. of N.H., we determined that "[t]aken as a whole, the clear intent of the statute is to create tax incentives for industry to construct pollution control facilities." Id. at 84, 470 A.2d at 858. Stating that the legislature "recognized the often lengthy and expensive process of constructing facilities which reduce pollution," id. at 84-85, 470 A.2d at 858, we concluded that "the larger purpose of the statute [is] to encourage construction of pollution control facilities by mitigating the impact of property taxation." Id. at 85, 470 A.2d at 858.

RSA 72:12-a (Supp.1983) directs that the WSPCC, in the case of a water pollution control facility, has the authority to determine whether and to what extent the facility is used to control pollution. Hence, the legislature has entrusted the WSPCC with primary responsibility to administer RSA 72:12-a (Supp.1983). Accordingly, the WSPCC's interpretations of the terms of RSA 72:12-a (Supp.1983) are entitled to great deference, unless an interpretation is in clear conflict with the express statutory language. See Hamby v. Adams, 117 N.H. 606, 609, 376 A.2d 519, 521 (1977).

We first consider whether thermal discharge is pollution. Although the legislature employed the term "pollution" without elaboration, its use of the phrase "any source of air or water pollution," RSA 72:12-a (Supp.1983) (emphasis added) evinces a legislative intent to construe the term broadly.

In this jurisdiction, statutory words and phrases are interpreted according to their common and approved usage, unless the term has a technical or otherwise peculiar meaning. RSA 21:2. The common meaning of the term "pollution" is, "[t]he contamination of soil, water, or the atmosphere by the discharge of noxious substances," The American Heritage Dictionary of the English Language 1015 (1981). Reference to that common meaning sheds little light on the answer to the technical question whether a particular substance, discharged in a particular place and in a specific quantity, constitutes pollution. Accordingly, the term falls into the latter category, and in determining whether thermal discharge can be a pollutant, we refer to the Water Pollution Act, RSA chapter 149 (1977 & Supp.1983) where the term "pollution" takes on technical significance.

Reference to the Water Pollution Act is in accord with the "familiar principle in statutory construction that all statutes upon the same subject-matter are to be considered in interpreting any one of them." Campton v. Plymouth, 64 N.H. 304, 309, 8 A. 824, 825 (1886); O'Brien v. Manchester, 84 N.H. 492, 495, 152 A. 720, 722 (1930).

"It is assumed that whenever the legislature enacts a provision, it has in mind previous statutes relating to the same subject matter....

....

Unless the context indicates otherwise, words or phrases in a provision that were used in a prior act pertaining to the same subject matter will be construed in the same sense."

2A N. Singer, Sutherland Statutory Construction § 51.02, at 453-54 (4th ed. 1984) (footnotes omitted).

RSA chapter 149 (1977 & Supp.1983) does not define the term "pollution." By regulations promulgated pursuant to RSA 149:4, XVII, for the purposes of interpreting and implementing the chapter, however, the WSPCC has defined "pollutant" as "any introduced gas, solid, or liquid matter which renders a resource unfit for a specific use." 5 N.H. Admin. Rules, Ws 431.02(f). See also RSA 149:1, III, IV (waste defined as including any substance harmful to human, animal, fish or acquatic life).

A review of RSA chapter 149 (1977 & Supp.1983) and the regulations promulgated thereunder reveals that thermal discharge can be a source of pollution. In RSA 149:3, the legislature sets forth the classifications of surface waters of the State, see RSA 149:1 (" 'Surface waters of the State' means streams, lakes, ponds and tidal waters within the jurisdiction of the State ..."), and prescribes the standards applicable to each class. The legislature specifically mentions temperature, stating: "Any stream temperature increase associated with the discharge of ... cooling water shall not be such as to appreciably interfere with the uses assigned to [the] class." RSA 149:3, II (class B waters); RSA 149:3, III (class C waters); RSA 149:3, IV (class D waters). See RSA 149:3, IV-b (tidal waters shall satisfy all conditions contained in RSA 149:3, II [class B waters] ). The legislature further provided: "In prescribing minimum treatment provisions for thermal wastes discharged to interstate waters, the commission shall adhere to the water quality requirements and...