Seacoast Anti-Pollution League v. Costle

• Decision Date: 02 May 1979
• Docket Number: ANTI-POLLUTION,No. 78-1339,78-1339
• Citation: 597 F.2d 306
• Parties: , 9 Envtl. L. Rep. 20,320 SEACOASTLEAGUE et al., Petitioners, v. Douglas M. COSTLE, as Administrator of the United States Environmental Protection Agency, Respondent, Public Service Company of New Hampshire, Intervenor.
• Court: U.S. Court of Appeals — First Circuit

Page 306

597 F.2d 306

13 ERC 1001, 9 Envtl. L. Rep. 20,320

SEACOAST ANTI-POLLUTION LEAGUE et al., Petitioners, v. Douglas M. COSTLE, as Administrator of the United States Environmental Protection Agency, Respondent Public Service Company of New Hampshire, Intervenor.

No. 78-1339.

United States Court of Appeals First Circuit.

Argued March 15, 1979.

Decided May 2, 1979.

Robert A. Backus, Manchester, N. H., and Harvey N. Winchester, Needham, Mass., with whom O'Neill, Backus & Spielman, Manchester, N. H., was on brief for petitioners.

Barry S. Neuman, Atty., Environmental Protection Agency, with whom James W. Moorman, Asst. Atty. Gen., Joan Bernstein, Gen. Counsel, James A. Rogers, Atty., Environmental Protection Agency, Bradford F. Whitman and Fred R. Disheroon, Attys., Dept. of Justice, Washington, D. C., were on brief for respondent.

Thomas G. Dignan, Jr., Boston, Mass., with whom John A. Ritsher, R. K. Gad, III, Faith S. Hochberg, and Ropes & Gray, Boston, Mass., were on brief for intervenor.

On Petition for Review of a Decision on Remand of the Administrator of the United States Environmental Protection Agency.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, ^* District Judge.

COFFIN, Chief Judge.

This case returns to us challenging the Administrator's Remand Opinion reaffirming his approval of the proposed once-through cooling system for the Seabrook Nuclear Power Plant. We had remanded his first decision on procedural grounds. Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, Cert. denied, --- U.S. ----, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978). The petitioners, Seacoast Anti-Pollution League and Audubon Society of New Hampshire, now seek review of a procedural aspect of the Administrator's hearing on remand, the substance of the decision, and the adequacy of the Administrator's explanation of his decision.

I. The Procedure on Remand

We explained the procedural history of this case and the design of the Seabrook facility in our earlier opinion, Supra. We will not repeat ourselves. That opinion left the Administrator with several options for correcting his errors. He issued a "Response to the Remand Order in the Seabrook Case" choosing to hold a new hearing at which the technical experts who had advised him before would testify and be subject to cross-examination. He also decided to allow the parties to introduce evidence not offered at the prior hearings. Though petitioners suggest they may somehow have been injured by the breadth of the remand hearing, they do not argue that these aspects of the procedural order were erroneous. They challenge, however, the Administrator's instructions to his staff:

"I am directing my Staff not to appear at this hearing as proponents of any particular result, and avoid to the extent possible taking an adversary position in it. The Staff of Region I shall prepare a technical summary and analysis of the evidence submitted . . . . This report shall be non-adversary in nature, but shall contain specific conclusions and recommendations."

The hearing was held, and the staff appeared and cross-examined witnesses. The staff replied to proposed findings and conclusions of the applicant Public Service Company of New Hampshire (PSCO), an intervenor before us, but did not file proposals of its own. The staff's technical summary and analysis did not make specific conclusions, apparently in part because the staff experts were not unanimous.

Petitioners spend a good deal of space arguing that such an order is unprecedented in agency practice. If so, we might be curious why the Administrator issued such a novel order, but we would not, for that reason, have any basis to hold the order illegal. Absent law to the contrary, agencies enjoy wide latitude in fashioning their procedural rules. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543-44, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). ¹ The only law petitioners cite to support their position that the Administrator is compelled to allow his staff to participate as an adversary is unpersuasive. Office of Communications of United Church of Christ v. FCC, 138 U.S.App.D.C. 112, 425 F.2d 543 (1969), is not on point because it was concerned only with the impact agency neutrality can have on the allocation of the burden of proof. The regulation, 40 C.F.R. § 125.36(a)(1), in which the Administrator defines "party" to include "officers or employees of the Environmental Protection Agency" does not answer the question. Petitioners argue, by reference to Black's Law Dictionary, that a party is someone "who takes sides" ² and that, therefore, the regulation requires the Agency to take a side. In fact, of course, the word "party" has a far broader meaning and can refer to anyone "concerned or having or taking part in any affair, matter, transaction, or proceeding", to quote again from Black's. One can participate in a proceeding without taking a side. In short, merely labeling the Agency's staff a party tells us nothing about the duties of that party.

Finally, petitioners suggest that EPA must take a side to meet its Congressional mandate to protect the environment. Certainly EPA need not always side against applicants for permits to discharge pollutants. The staff was an active participant in the remand hearing, both in building and testing the record. Staff experts offered views on both sides of the issues. The only thing the staff did not do was advocate a particular outcome. The Administrator found that the record would not have been more complete had the staff taken sides.

We are not sure how petitioners can show that they are aggrieved by the Agency's neutrality given the significant likelihood that the staff would have chosen, if put to it, to support the Administrator's earlier decision (the substance of which we had not addressed in our opinion). But petitioners have failed to point us to any law requiring EPA's staff not to be neutral. Therefore this challenge fails. ³

II. Substantive Challenges

PSCO, as a point source applying for permission to discharge heat, is required to "demonstrate to the satisfaction of the Administrator" that the design of the Seabrook plant "will assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife . . . ." 33 U.S.C. § 1326(a). Moreover, "the location, design, construction, and capacity of cooling water intake structures (must) reflect the best technology available for minimizing adverse environmental impact." 33 U.S.C. § 1326(b). We must affirm the Administrator's decisions under these sections if they are supported by substantial evidence in the record. 5 U.S.C. § 706(2)(E).

The plant's design requires 824,000 gallons of cooling water per minute. The design calls for cooling water to be drawn from the ocean beyond the Hampton-Seabrook Estuary about 7,000 feet offshore from Hampton Beach. The water there is 58 feet deep. The intake structures will be between 10 and 17 feet above the ocean bottom and will pull water into the system at a velocity of about one foot per second. The water is ultimately discharged at another location through a diffuser system and is about 39o F warmer than the ambient water temperature. Living organisms sucked into the cooling system are not expected to survive.

The Administrator found that most mature fish likely to encounter the intake flow would be able to detect that flow and would have sufficient swimming speed to avoid being trapped. During their larval stages, however, many fish are at the mercy of the tides and currents and would have no way to escape. Even some juvenile fish might be too small, lacking the necessary speed to escape the intake's pull. The Administrator decided, though, that no species would exist in sufficient numbers at the intake location to be endangered. Though the intake would act as an additional large predator, there are other more dangerous threats in the natural environment, which fish are able to survive because they are highly fecund. Remand Opinion at 51. For instances, individual female winter flounder produce about 500,000 eggs annually and rainbow smelt produce between 25,000 and 50,000. Id. at 35.

Against this background, petitioners raise three relatively narrow issues: that the Administrator erred in concluding (a) that the impact on juvenile rainbow smelt would be small enough to assure the protection and propagation of the species; (b) that the impact on winter flounder larvae would also be small enough; ⁴ and (c) that the cooling water intake location " reflect(s) the best technology available for minimizing adverse environmental impact."

A. Juvenile Smelt

The Administrator found:

"Although there is some doubt whether most juvenile smelt possess the requisite swimming speed to avoid the intake, the plant's effects on them will not, in any event, be significant because Most smelt will not be found as far out as the intake structure or in water as deep as its opening. Although in its most recent sampling, Public Service Company's consultant found some smelt in water at least as far out as, and, perhaps, as deep as the intake structure and its opening, this does not alter the conclusion based upon almost 100 years of experience that smelt is In general an inshore fish found a mile or so offshore inhabiting the upper 3 fathoms of the water column. This was clearly the view of well qualified experts who considered both this general experience and the more recent sampling. The conclusion of these experts is consistent with the general experience of professional fishermen in the area." (Footnote omitted.) (Emphasis added.)

Petitioners challenge this conclusion as unsupported. Their theory is that the Administrator relied on a 1953 book which set the outer boundary of smelt populations at about one mile; whereas the same authors ten years later said that smelt ranged as far as six miles out to sea. Petitioners also point to the PSCO sampling referred...