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Seacoast Anti-Pollution League v. Costle

Citation: 8 ELR 20207
No. No. 77-1284, 572 F.2d 872/11 ERC 1359/(1st Cir., 02/15/1978) Remanded

Upon direct review of a determination of the Administrator of the Environmental Protection Agency (EPA) that the intervenor utility had met its burden of proof under § 316 of the Federal Water Pollution Control Act (FWPCA) in seeking an exemption from applicable thermal discharge criteria in connection with the proposed construction of the Seabrook nuclear generating plant, the First Circuit remands that decision for failure to comply with the Administrative Procedure Act (APA). The court rejects the contention that the requirements of § 554 of the APA are inapplicable to hearings held pursuant to §§ 316(a) and 402(a)(1) of the FWPCA. Although those sections do not require hearings to be held "on the record," such hearings are precisely the type at which the adjudicative procedural requirements of the APA were directed. Thus, to the extent that the Administrator grounded his decision upon factual information which was not a part of the administrative record and not subject to cross-examination, the decision is invalid. The Administrator is directed to approach the question anew, either without benefit of the improperly received data or in light of that data if subjected to rebuttal and cross-examination, or in any other manner consistent with the requirements of the APA. Additionally, the Administrator's solicitation of additional submissions subsequent to the public permit proceeding and without holding a second public hearing violated § 316 of the FWPCA, which mandates a hearing in all such cases. The court directs the Administrator to consider whether, in light of the nature of the information received in the post-hearing submissions and the context of the proceedings, an additional hearing should be held at which plaintiffs would be afforded an opportunity to cross-examine the sources of that information.

Counsel for Petitioner
Robert A. Backus
O'Neill, Backus, Spielman & Little
116 Lowell St., Manchester NH 03101
(603) 668-7272

Harvey N. Winchester
Conservation Law Foundation of New England
3 Joy St., Boston MA 02114
(617) 742-2540

Counsel for Respondent
James W. Moorman, Ass't Attorney General;
Fred R. Disheroom, Sanford Sagalkin
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2716

William F. Pedersen
Office of General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Intervenor New Hampshire Voice of Energy
Ronald A. Zumbrun, Raymond M. Momboisse, Robert K. Best, Albert Ferri, Jr., Donald K. Simpson, Lawrence P. Jones
Pacific Legal Foundation
1990 M St. NW, Washington DC 20036
(202) 466-2686

Harrison A. Fitch, Wayne S. Henderson, Peter D. Kinder
New England Legal Foundation
110 Tremont St., Boston MA 02108
(617) 482-1410

Counsel for Intervenor Public Service Co. of New Hampshire
Thomas G. Dignan, Jr., John A. Ritsher
Ropes & Gray
225 Franklin St., Boston MA 02110
(617) 423-6100

For himself, Campbell and Bownes, JJ.