Petition — Public Service Co. v. Seacoast Anti-Pollution League

Supreme Court, U. T.

FILED

MAY 15 1978

K, JR., CLERK

In THe

Supreme Court of the United States

Octoser Term, 1977

No. 77- 1624

PUBLIC SERVICE COMPANY OF

NEW HAMPSHIRE,

Petitioner,

v.

SEACOAST ANTI-POLLUTION LEAGUE and

AUDUBON SOCIETY OF NEW HAMPSHIRE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Tuomas G. Dienay, Jr.

G. MarsHaLty Moriarty

R. K. Gap m

225 Franklin Street

Boston, Massachusetts 02110

(617) 423-6100

Attorneys for the Petitioner

Of Counsel:

Fartn S. Hocuserc

Ropes & Gray

225 Franklin Street

Boston, Massachusetts 02110

PRESS OF GEORGE H DEAN CO. 805TON

II.

III.

TABLE OF CONTENTS

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D ̃ - QW. 0...

QUESTIONS PRESENTED FOR REVIEW...........

STATUTES AND REGULATIONS INVOLVED .......

STATEMENT OF THE CASE ggg

, ̃ T....

ER’s NUCLEAR Power Pr

REASONS FOR GRANTING THE WRIT...____.........

I. THe Decision or THE Court or APPEALS IMPOSES

uPON FeperaL AGEeNcres PrRocepuRAL OBLIGA-

TIONS NOT REQUIRED By THE CONGRESS AND IS IN

ConFLICT WITH THIS CouRT’s DECISIONS AS TO

THE Scope or Jupicia, Review w

To THE Extent rr ConsTRUES THE APA, THE

Decision WiLL Resutt N THE IMPOSITION OF

ForMaListic Triat-TyPeE PROCEDURES ON Nv-

MEROUS ADMINISTRATIVE PROCEEDINGS HERETO-

FORE UNBURDENED By SUCH ..................

By DmsREGARDING THE EPA ADMINISTRATOR’S

STATEMENT AS TO THE ACTIONS TAKEN BY HIS

TECHNICAL PANEL THE CouRT OF APPEALS HAS

SO FAR DEPARTED FROM THE ACCEPTED AND USA!.

Course oF JUDICIAL PROCEEDINGS AS TO CALL FOR

AN EXERCISE OF THIS CourT’s Power or SuPER-

%%% dc We CUCU o 6 wkb dn wdvacka:

Pace

meow wo wo ww — :

TABLE OF CITATIONS

CasEs

Camp v. Pitts, 411 U.S. 138 (1973) .................... 12

EPA v. State Water Resources Control Board, 426 U.S. 200

e

FCC v. Pottsville Broadcasting Co., 309 U.S. 134 (1940)

FCC v. Schreiber, 381 U.S. 279 (1965) ................. 9

ITT v. Electrical Workers, 419 U.S. 428 (1975) 12

Marathon Oil Company v. EPA, 564 F.2d 1253 (9th Cir.

. V * 8

Morissette v. United States, 342 U.S. 246 (19525 11

Public Service Company of New Hampshire (Seabrook

Station, Units 1 & 2), LBP-76-26, 3 NRC 123 (1976),

aff'd, ALAB-422, 6 NRC 33 (July 26, 1977), aff’d, CLI-

r errr 5

United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir.

„„ ˙ ... Ä 8

United States v. Allegheny-Ludlum Steel Corp., 406 U.S.

/ . hoes 11

United States v. Florida East Coast Ry., 410 U.S. 224

. 10, 11

United States v. Turley, 352 U.S. 407 (1957) 11

Vermont Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, — U.S. , 46 U.S.L.W. 4301 (April 3,

— d . ĩͤ v. 8, 9, 16, 17, 18

STATUTES

Paae(s)

Administrative Procedure Act, 5 U.S.C. § 501 et egg. 3, 12

, 3, 10, 11

V ie Sires ad a'e cs woe ckedceedae 10

S Rogie t 2, 3, 7, 8, 11, 12

i ov ewe cbbeweeae 11

r 2, 3, 7, 8, 10, 11, 13

58, 5 U.S. C. 5557 V 2, 3, 7, 8, 10, 11

e 8

Federal Water Pollution Control Act, Amendments of 1972,

, 2 3, 4, 10, 12

5307 (a) (2), 33 U.S.C. 5 1317 (a) (e:) 11

— cccecun 3, 7, 10, 11, 13

e 4, 5, 11

V 3, 4, 5, 7, 11, 13

9402 (a) (1), 33 U.S.C. § 1342 (a) (iI 11

§ 602(6), 88 U.S.C. 6 1962(6) ...................... 4

Lo 11

J 11

9509 (b) (1), 33 U.S. C. 5 1369 (b) (iI 7

5509 (b) (1) (d), 33 U.S.C. § 1369 (b) (1) (d) 8

5800 (e), 88 U.S.C. § 100000 7, 11

Judicial Code, 28 U.S.C. § 1 et seq.:

28 U.S.C. § 1254 ..... UT... 4.3 Oba nce net 2

REGULATIONS

r ew ewucece 5

r cw wce 5

4 3

MISCELLANEOUS

39 Fed. Reg. 27078 (July 24, 1970) 5

In Tue

Supreme Court of the Anited States

Octo:.er Team, 1977

No. 77-

PUBLIC SERVICE COMPANY OF

NEW HAMPSHIRE,

Petitioner,

v.

SEACOAST ANTI-POLLUTION LEAGUE and

AUDUBON SOCIETY OF NEW HAMPSHIRE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The petitioner, Public Service Company of New Hamp-

shire, respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States Court

of Appeals for the First Cireuit entered in this proceeding

on February 15, 1978.

OPINIONS BELOW

In the separately bound appendix submitted herewith are

set forth the opinion and judgment of the United States

Court of Appeals for the First Cireuit in Seacoast Anti-

Pollution League v. Costle, No. 77-1284 (Feb. 15, 1978).

App. 1-19. The decision is not yet officially reported. It is

unofficially reported in its uncorrected’ version at 11 ERC

1358. The decision of the Administrator of the Environ-

mental Protection Agency on review in the Court of Ap-

peals (unofficially reported at 10 ERC 1257) (App. 20-66),

the Technical Report referred to therein (App. 67-130) and

the Administrator’s denial of a stay of effectiveness of his

decision (App. 131-143) are also set out in the separately

bound appendix. None of these decisions is officially re-

ported.

JURISDICTION

The judgment of the Court of Appeals was entered on

February 15, 1978. The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

QUESTIONS PRFSENTED FOR REVIEW

1. May a court of appeals require that federal licensing

hearings be conducted in accordance with adversarial pro-

cedures not required by the agency’s generic statute be-

cause, in the court’s judgment, such procedures will be

helpful. .. in guaranteeing both reasoned decision-making

and meaningful judiciz! review”?

2. When an agency’s generic statute requires only that

there be an “opportunity for a public hearing”, may a court

of appeals nevertheless impose upon the agency’s hearing

process the requirements of Sections 5, 7 and 8 of the Ad-

ministrative Procedure Act which by their terms apply only

to adjudications “required by statute to be determined on

the record”?

3. In disregarding an agency's explicit statement that

a hearing record had not been improperly “supplemented”

By an order issued February 23, 1978, the Court of Appeals

deleted a footnote (No. 24) which appeared in the opinion as first

issued.

ee ee oe

during the decision-making portion of an adjudicatory pro-

ceeding, did not the Court of Appeals depart so far from

the accepted and usual course of judicial proceedings as to

call for an exercise of this Court’s power of supervision?

STATUTES AND REGULATIONS INVOLVED

The case involves the sections of the Federal Water Pol-

lution Control Act Amendments of 1972 (FWPCA), the

Administrative Procedure Act (APA) and U.S. Environ-

mental Protection Agency Regulations listed below, which

sections are reproduced in the separately bound appendix

submitted herewith. App. 175-93.

FWPCA § 316, 33 U.S.C. § 1326. App. 184-85.

FWPCA § 402, 33 U.S.C. § 1342. App. 186-93.

APA § 4,5 U.S.C. § 553. App. 175-76.

APA §5,5 U.S.C. § 554. App. 176-79.

APA §7,5 U.S.C. § 556. App. 179-81.

APA § 8,5 U.S.C. § 557. App. 181-84.

40 C. F. R. § 125.36(n)(12). App. 193.

NPA Pp wpe

STATEMENT OF THE CASE

INTRODUCTION

In June, 1977, the United States Environmental Pro-

tection Agency (EPA) issued a decision approving the

cooling system of petitioner’s nuclear power plant currently

under construction in the State of New Hampshire. EPA’s

approval, granted after extensive hearings, represented the

fourth separate administrative approval of the cooling sys-

tem. Following earlier hearings, the system had also been

approved by various agencies of the State of New Hamp-

shire, a United States Nuclear Regulatory Commission

4

Licensing Board and the U.S. Army Corps of Engineers.

By its decision in this case the Court of Appeals overturned

EPA’s decision and directed still further administrative

proceedings with respect to petitioner’s cooling system.

I. Tee Sratrurory Faameworx

Under the Federal Water Pollution Control Act Amend-

ments of 1972 (FWPCA), 33 U.S.C. 1251 et seq., EPA

issues regulations setting standards and guidelines which

govern discharges into navigable waters of the United States.

FWPCA further provides that, absent a permit issued by

EPA, no one may discharge any “pollutant” (including

heat)* into the navigable waters of the United States. § 402,

33 U.S.C. § 1342. Such permits may be issued only “after

opportunity for public hearing.” Jd. FWPCA also pro-

vides that “after opportunity for public hearing,” EPA may

allow a variance or exemption which would permit the dis-

charge of heat in excess of that allowed by the standards

and guidelines contained in the regulations. § 316(a), 33

U.S.C. §1326(a). Once issued, the permit transforms the

regulations applicable to the particular discharge into obli-

gations of the discharger. EPA v. State Water Resources

Control Board, 426 U.S. 200, 205 (1976).

I. Acency Proceepincs Wirn Respect ro Peririoner’s

Nucrear Power PLant

The petitioner, Public Service Company of New Hamp-

shire (PSCO), is the lead member of a consortium of pri-

* Pollutant is defined as “dredged spoil, solid waste, incinerator

residue, sewage, garbage, sewage sludge, munitions, chemical

wastes, biological material, radioactive materials, heat, wrecked or

discarded equipment, rock, sand, cellar dirt and industrial, munici-

pal and agricultural waste discharged into water.” § 502(6), 33

U.S.C. § 1362(6).

vately and municipally owned electric utilities which own the

Seabrook nuclear electric generating station. On August 1,

1974, pursuant to FWPCA 5 316(a) & 402, 33 U.S.C.

§§ 1326(a) & 1342, PSCO filed with Region I of EPA an

application for the approval of the proposed Seabrook con-

denser cooling system. App. 21. In connection therewith,

PSCO also sought a § 316(a) variance.

Fifteen months after the original application was filed,

the EPA Regional Administrator for Region I, having held

two legislative-type public hearings, approved the cooling

system. This approval was consistent with the con-

clusions reached by various agencies of the State of New

Hampshire, which had already concluded joint adjudicatory

hearings lasting 32 trial days on the Seabrook plant.“ Sub-

sequently, on June 29, 1976, after some 60 trial days of

hearings, an Atomic Safety and Licensing Board of the

United States Nuclear Regulatory Commission (NRC) is-

sued a lengthy decision reaching the same result. Public

Service Company of New Hampshire (Seabrook Station,

Units 1 & 2), LBP-76-26, 3 NRC 123 (1976), ad, ALAB-

422, 6 NRC 33 (July 26, 1977), aff'd, CLI-78-1, 7 NRC __

(January 6, 1978).

After the Regional Administrator’s approval the respon-

dents Seacoast Anti-Pollution League (SAPL) and Andu-

bon Society of New Hampshire (Audubon), obtained an

adjudicatory hearing for further review by the Regional

Administrator.“ On November 9, 1976, the Regional Admin-

istrator reversed himself and revoked his prior approval.

* Dkt. No. D-SF 6205 Publie Service Company of New Hamp-

shire (N.H. Site Evaluation Committee and N.H. Public Utilities

Commission).

* See 40 C. F. R. Parts 122 and 125, as then last amended, 39 Fed.

Reg. 27078 (July 24, 1974).

PSCO’s petition for review of the Regional Administra-

tor’s second decision was granted by the EPA Administra-

tor. To assist him in his review of the record, which in-

cluded 1620 pages of transcript and some 86 documentary

exhibits including many highly technical studies, the Ad-

ministrator convened a panel of six technical and scientific

experts who were full-time members of the EPA technical

staff with no previous connection with the Seabrook appli-

cation. App. 24, 107-30. The Technical Panel was in-

structed to confine itself to sifting the record in the case

and advising the EPA Administrator solely on the basis of

that record. App. 78.“ The EPA Administrator has ex-

pressly stated that the Technical Panel did not deviate from

these instructions. App. 138.

The Technical Panel issued a report to the Administra-

tor which coocluded that the information in the record was

sufficient to approve the proposed cooling system with a

single exception. App. 67-105. That exception was a lack

of certain technical information as to a certain mode of

discharge which would occur at intervals during plant

operation. App. 94. The EPA Administrator requested

this information; PSCO furnished the information sought

by submitting affidavits; and the EPA Administrator gave

all parties an opportunity to comment thereon. The EPA

Administrator denied SAPL and Audubon’s request for a

hearing (and cross-examination) with respect to this infor-

mation because SAPL and Audubon failed to show any

need therefor. App. 64-65.

»The instruction to the Technical Panel stated:

“You are asked to review the record and answer the following

questions, based upon the record.”

There then followed a list of questions. App. 78-79.

7

On June 17, 1977, the EPA Administrator issued a deci-

sion reversing the Regional Administrator and approving

the Seabrook cooling system. App. 20-66. He also made

public the report from the Technical Panel. App. 67-105.

SAPL and Audubon then petitioned the Court of Appeals

for review of the Administrator’s decision pursuant to

F WPCA § 509(b)(1), 33 U.S.C. § 1369(b) (1).

On February 15, 1978, three and one-half years after

the initial application and one and one-half years after

construction had commenced, the Court of Appeals vacated

the EPA Administrator’s decision and ordered further pro-

ceedings before that agency. This decision was predicated

upon the Court of Appeals’ belief that permit hearings be-

fore EPA must include at least all of the procedures set

forth in sections 5, 7 and 8 of the Administrative Procedure

Act (APA), 5 U.S.C. §§ 554, 556, 557, and a finding that two

aspects of the EPA proceeding did not conform to this

standard. In particular, the Court of Appeals found still

further proceedings to be required in this case because of a

perceived improper “supplementation” of the hearing rec-

ord by the Technical Panel. App. 14-19.

REASONS FOR GRANTING THE WRIT

I. THe Decision or tHe Court or Arrrals ImPOsEs UPON

Feperat AGENCIES ProcepuRAL OBLIGATIONS NOT Rx-

QUIRED BY THE CONGRESS AND Is IN CONFLICT WITH THIs

Court’s Decisions REGARDING THE Proper SCoPE oF

Jupiciat Review.

The linchpin of the Court of Appeals opinion was its

decision to “judge the proceedings [at EPA] according to

the standards set forth in §§ 554, 556, and 557 of the APA”.

App. 10. The Court of Appeals acknowledged that the

generic statutes involved, FWPCA §§ 316 and 402, did not

in haec verba require permit hearings to be “on the record”.

App. 5. Nevertheless, because of “the nature of the decision

at issue” and the court’s view that [a] dversarial hearings

will be helpful .. in guaranteeing both reasoned decision-

making and meaningful judicial review”, App. 6, the Court

held that “(t]he panoply of procedural protections provided

by the APA is necessary.. to protect the rights of both

the applicant and “the public for whose benefit the very

strict limitations have been enacted.“ App. 7. Based upon

this form of reasoning, the Court of Appeals announced

that it was “willing to presume that, unless a statute other-

wise specifies, an adjudicatory hearing subject to judicial

review must be on the record.” App. 8 (emphasis sup-

plied).

This decision was thus directly contrary to the decisions

of this Court, which for over thirty-five years has made

*The Court of Appeals did not view the requirement of mean-

ingful judicial review as determinative of the question because it

specifically rejected the view of the Ninth Circuit that FWPCA

§ 509(b) (1) (d), 33 U.S.C. § 1369 (b) (1) (d), the provision for ju-

dicial review, itself made APA §§ 554, 556, 557 applicable. Compare

App. 6 at n.6 with Marathon Oil Company v. EPA, 564 F.2d 1253

(9th Cir. 1977). The Court of Appeals also r jected the Seventh

Circuit’s view that the full APA adversarial adjudicatory pro-

ceedings could be required in EPA permit hearings on the basis of

APA §9(c), 5 U.S.C. § 558(c). Compare App. 10-11 at n.11 with

United States Steel Corp. v. Train, 556 F.2d 822, 833-34 (7th Cir.

1977). It thus becomes apparent that the “nature of the decision

at issue” and the Court of Appeals’ assumption that the decision-

making process will be facilitated by more procedure were the de-

ciding factors. This ruling is directly contrary to the proper role

of a court of appeals charged with reviewing federal agency deci-

sion making, a role that this Court has again had occasion to

delineate in an opinion handed down after the Court of Appeals

decision in this case. See Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc., — U.S.. 46

U.S.L.W. 4301, 4308 (April 3, 1978).

—

9

clear in both adjudicative licensing, e. g., FCC v. Pottsville

Broadcasting Co., 309 U.S. 134, 143-44 (1940), and rule-

making, contexts, e.g., Vermont Yankee Nuclear Power

Corp. v. Natural Resources Defense Council, Inc., U.S.

— 46 U.S.L.W. 4301, 4302 (April 3, 1978); FCC v. Schrei-

ber, 381 U.S. 279, 290 (1965), that, absent an explicit statu-

tory provision or constitutional restraint to the contrary,

agencies are “free to fashion their own rules of procedure

and to pursue methods of inquiry capable of permitting

them to discharge their multitudinous duties.“ Vermont

Yankee, swpra at 4307; Schreiber, supra at 290; Pottsville

Broadcasting, supra at 143.

The Court of Appeals for the First Circuit has thus abro-

gated the EPA’s freedom to determine the best method

of discharging one of its “multitudinous duties” — in this

case the complex task of assessing and deciding extremely

technical and scientific issues committed to it by Congress.

It has reversed the agency’s expert decision-making for a

perceived failure to utilize a full “panoply” of rigid pro-

cedures derived from the APA. Moreover, by advancing

the proposition that unless Congress specifically provides

otherwise courts should require that all agency adjudica-

tory hearings subject to their review must be conducted

according to full APA trial-type procedures, the Court of

Appeals has effected a wholesale reversal of the method

of statutory interpretation consistently applied in this area

for over a quarter of a century. See Wong Yang Sumg v.

McGrath, 339 U.S. 33 (1950).

II. To tHe Extent It Constraues tHe APA, THe Decision

WILL Resvuct in THE ImMposiITION OF ForMALISTIC TRIAL-

Type Procepures ON NUMEROUS ADMINISTRATIVE Pro-

CEEDINGS HERETOFORE UNBURDENED BY SUCH.

As noted in the previous section, the Court of Appeals

appears to have held, incorrectly, that full APA procedures

10

should be judically imposed on EPA permit proceedings,

even though the language of FWPCA does not require such

an application. Even if the Court of Appeals’ opinion

might be read to rest upon a conclusion that the Congress,

rather than the judiciary, has mandated such procedures,

its error is equally clear.

Section 4 of the APA renders sections 7 and 8 applicable

in rulemakings “required by statute to be made on the

record after opportunity for an agency hearing... § 4(c),

5 U.S.C. $553(c). This Court has held that absent the

words “on the record” or their equivalent’ in a generic stat-

This Court analyzed the issue of equivalency in some detail in

United States v. Florida East Coast Ry., 410 U.S. 224 (1973):

“Insofar as this conclusion is grounded on the belief that the

language ‘after hearing’ of § 1(14)(a), without more, would

trigger the applicability of §§ 556 and 557, it, too, is contrary to

our decision in Allegheny-Ludlum, supra. The District Court

observed that it was ‘rather hard to believe that the last sentence

of § 553 (e) was directed only to the few legislative spots where

the words “on the record” or their equivalent had found their

way into the statute book.’ 318 F. Supp., at 496. This is, how-

ever, the language which Congress used, and since there are

statutes on the books that do use these very words, see, ¢.g., the

Fulbright Amendment to the Walsh-Healey Act, 41 U.S.C. § 48a,

and 21 U.S.C. § 371(e) (3), the regulations provision of the Food

and Drug Act, adherence to that language cannot be said to

render the provision nugatory or ineffectual. We recognized in

Allegheny-Ludlum that the actual words ‘on the record’ and

after. . hearing’ used in § 553 were not words of art, and

that other statutory language having the same meaning could

trigger the provisions of §§ 556 and 557 in rulemaking pro-

ceedings. But we adhere to our conclusion, expressed in that

case, that phrase ‘after hearing’ in § 1(14)(a) of the Interstate

Commerce Act does not have such an effect.” 410 U.S. at 237-38.

The Court has thus recognized that congressional provision for a

“hearing” before a federal agency in not the equivalent of a provi-

sion requiring the agency’s decision “to be made on the record

after opportunity for an agency hearing.” In FWPCA §§ 316,

11

ute authorizing rulemaking, sections 7 and 8 of APA have

no applicability. United States v. Florida East Coast Ry.,

410 U.S. 224, 237-38 (1973); United States v. Allegheny-

Ludlum Steel Corp., 406 U.S. 742, 756-57 (1972).

The portion of the APA relied upon by the Court of

Appeals in this case, section 5, is an exact counterpart of

section 4 and makes sections 7 and 8 applicable to adjudica-

tions “required by statute to be determined on the record

after opportunity for an agency hearing... .” 5 U.S.C.

§ 554(a).

Both sections of FWPCA at issue here, 316(a) and

402(a)(1), refer to decisions to be made by the EPA Admin-

istrator “after opportunity for public hearing,” but neither

section states that such hearings shall be “on the record.”

As such an omission cannot be deemed to be an oversight

in drafting,* the Congress cannot be said to have directed

that the full “panoply” of APA procedures be applied to

every FWPCA section 316 or section 402 proceeding.’

402 the term “public hearing” is used. “Public” can add nothing

to the word “hearing” in this context because it is clear that Con-

gress is making no attempt to distinguish FWPCA permit hearings

from “private” hearings. Thus, the word “public” cannot be con-

strued as providing the equivalent of on the record.”

* Other sections of FWPCA do make reference to matters or

hearings on the record. E.g., §§ 507 (b) & (e), 33 U.S. C. §§ 1367 (b)

& (e); 5509 e), 33 U.S.C. 5 1369 (e); 5 307 (a) (2), 33 U.S.C.

§ 1317 (a) (2).

In addition Congress is presumed to be familiar with judicial

interpretations of terms having legal significance and to intend

such terms to have the meaning given them by the judiciary

when they are included in legislation. Morissette v. United States,

342 U.S. 246, 263 (1952). See also United States v. Turley, 352

U.S. 407, 411 (1957). By the time FWPCA was enacted, the

presence — or absence — of the words “on the record” or their

equivalent had become a fact of specialized significance connoting

12

The Court of Appeals nevertheless required such a “pan-

oply” of additional procedures, construing section 5 of the

APA to have a very different meaning from that of section

4 despite their virtually indistinguishable language and de-

spite this Court’s uncontradictable recognition that the two

statutes are essentially identical. See Camp v. Pitts, 411

U.S. 138, 141 at n.3 (1973). The Court of Appeals decided

that this identity of language was of no consequence be-

cause one section dealt with “adjudications” and one with

“rulemaking”. Congress, however, by using such identical

language, demonstrated its intent that both “adjudications”

and “rulemakings” be governed by the same standard.

The National Labor Relations Board advanced a directly

analogous argument to this Court in ITT v. Electrical

Workers, 419 U.S. 428 (1975), wherein it urged that the

provision in 29 U.S.C. § 160(k), which requires the Board

“to hear and determine” unfair labor practice disputes, did

not bring such proceedings within 5 U.S.C. § 554, because

the statute did not require such disputes “to be determined

on the record after opportunity for an agency hearing.”

This Court found is unnecessary to reach that issue. See

419 U.S. at 442-43 n.15. If the decision of the Court of Ap-

peals for the First Circuit in this case remains undisturbed,

however, not only will the Labor Board’s argument have

been effectively rejected, but also the adversarial proce-

dures of the APA will be necessitated whenever any federal

ugency conducts any proceeding which might fall within the

broad definition of “adjudication.” Such a far-ranging

expansion of the understanding of congressional intent, if

a definite intention. The decision of the Court of Appeals simply

ignores the signalled legislative judgment, with which, as its deci-

sion makes clear, the Court of Appeals does not agree.

13

it is to be undertaken at all, should not be permitted with-

out plenary consideration by this Court.

II. By Disrecarpinc tHe EPA ApMINIsTRATOR’s STATE-

MEN? AS TO THE ACTIONS TAKEN BY His TECHNICAL

PANEL, THE Court or Appeats Has So Far DeParteD

FROM THE ACCEPTED AND Usuat Course or JupiciaL

PROCEEDINGS As TO CALL FOR AN EXERCISE OF THIS

Court’s Power or SUPERVISION

The result reached by the Court of Appeals, a remand for

still further proceedings, depended” upon its finding that

the Technical Panel had engaged in what was characterized

as improper “supplementation”. App.19. This finding was

directly contrary to the Administrator’s express statement

on the record that the Technical Panel had not supple-

mented the record, improperly or otherwise. App. 16 at

n.20, 138.

The Court of Appeals stated that it was required to show

no deference to the Administrator’s representations in this

regard. Instead, in the Court of Appeals’ view, it was

1 The Court of Appeals also held the Administrator’s decision to

permit the filing of additional testimony in writing with an oppor-

tunity for written comment thereon violated the requirement of

FWPCA §§ 316 and 402 that there be “an opportunity for a public

hearing”. App. 13. The court held that when a statute required a

“public hearing” for initial licensing this overrides the express

provision in section 7 of the APA that permits an agency to receive

written testimony. App. 13. Having so held, the court then indi-

cated that in the circumstances of this case it ordinarily would not

require a remand on this question but for the fact that a remand

was required in light of the perceived APA violation discussed in

the text. App. 14-15.

14

authorized to conduct an independent review of this issue.

App. 16 at n.20. The “independent review” which the Court

actually undertook, however, consisted of only its @ priori

construction of certain statements made by the Technical

Panel in its Report to the Administrator. The Court of

Appeals construed several arguably ambiguous statements

in this Report to be reflective of an improper “supplementa-

tion” by the panel.

The basis for the supplementation finding was the Ccurt

of Appeals’ reading of four statements in the Technical Re-

port. The court stated the most “serious” example of the

Technical Panel supplementing the record occurred in the

following statement excerpted from the Technical Report:

“There is little information in the record on the thermal

tolerances of marine organisms exposed to the specific

temperature fluctuation associated with the Seabrook

operation. However, the scientific literature does con-

tain many references to the thermal sensitivity of mem-

bers of the local biota.” App. 17."

The court went on to list three other statements which

allegedly revealed improper “supplementation”.

“Similar, though less egregious, examples occur in the

Report at pages 13-14 (‘Thus, while it is true that the

applicant did not perform exhaustive studies on all [Rep-

resentative Important Species] it is not true that nothing

is known about these species, their biology, distribution

or value to the ecosystem.“); 27 (‘We concur...

that there was no evidence on the question of whether

there will be erg on wildlife, such as birds

Since we conclude that holoplankton . . . are not likely to

be adversely affected, it is unlikely that there would be

any conceivable impact at the top of the food chain.’) ;

and page 30 (‘We agree that only limited data exist on

the migratory pathways of fish to and from Hampton

Harbor .... Nevertheless there have been substantial

studies performed on fish migratory behavior; some of

* Compare App. 90 to see the statement in con‘ xt.

15

— have been done at power plant sites.“) “ App. 17.

1

The Court of Appeals did not hold that the type of litera-

ture referred to by the Technical Panel was improperly

used, or that it was ineffective to fill any gaps in the record;

the court held only that the method of bringing the material

into the record — by a supposed “supplementation” — was

improper. There was no such supplementation.

The Court of Appeals acted quite improperly in so con-

struing arguably ambiguous statements to mean one thing,

despite the explicit statement of the EPA Administrator

(who had available to him the entire administrative record

as well as the opportunity to consult with the members of

the Technical Panel) that they meant something quite dif-

ferent. Such wholly unfounded judicial rejection of a con-

clusion reached by the head of a federal agency, which

rejection is used as a basis for remanding to that agency

a decision which was the result of vears of previous pro-

ceedings and studies, is itself sufficiently erroneous to re-

quire relief from the Court of Appeals’ interference with

the administrative process. In this particular case, more-

over, the magnitude of the Court of Appeals’ error is re-

vealed even more forcefully by events which have occurred

since the date of its decision.

Since the decision of the Court of Appeals, EPA has

commenced the process for reopening the hearing. As part

of the agency’s own presentation, the Technical Panel has

filed for inclusion in the record a response to the Court of

Appeals’ decision. App. 159-73. In that response the Tech-

nica! Panel makes clear that it did not supplement the ree-

ord in any way, App. 161-62, and that literature which sup-

12 Compare App. 86, 96, 98 to see these statements in context.

16

ported its reasoning, which the Court of Appeals believed

was not cited in the record (App. 17 & n.21), was in fact

cited in the record. App. 173. In short, the entire factual

basis for the Court of Appeals’ decision turned out to be

erroneous. This was brought to the attention of the Court

of Appeals in a motion for reconsideration. App. 144-73.

The Court of Appeals permitted the late filing of the mo-

tion, entertained it, and summarily denied the relief sought.

App. 174.

The situation presented is similar to that presented to

this Court by Consumers Power Company in the case of

Vermont Yankee Nuclear Power Corporation v. Natwral

Resources Defense Council, Inc., — U.S. —, —, 46 U.S. L. W.

4301, 4310-11 (April 3, 1978), wherein this Court stated:

“All this leads us to make one further observation of

some relevance to this case. To say that the Court of

Appeals’ final reason for remanding is insubstantial at

best is a gross understatement. Consumers Power first

applied in 1969 for a construction permit — not even an

operating license, just a construction permit. The pro-

_ plant underwent an incredibly extensive review.

reports filed and reviewed literally fill books. The

p i took years. The actual hearings themselves

over two weeks. To then nullify that effort seven years

later because one report refers to other problems, which

problems admittedly have been discussed at length in

other reports available to the public, borders on the

Kafkaesque.

Administrative decisions should be set aside . . only for

substantial procedural or substantive reasons as man-

ye statute, Consolo v. Fed. Maritime Comm’n, 383

US. , 620 (1966), not simply because the court is un-

happy with the result reached.

17

There never existed a substantial procedural reason for

sending this case back for still more hearings. The Court

of Appeals’ decision should be reversed.

CONCLUSION

The effects of this decision will be felt far beyond the

Seabrook site and the borders of New Hampshire. The

decision will be precedent for holding that any time a ge-

neric statute requires an agency to grant “an opportunity

for public hearing” the full panoply of APA procedures

must be utilized. The petition for a writ of certiorari

should be granted and the decision of the Court of Appeals

reversed.

This Court’s opinion in Vermont Yankee Nuclear Power

Corp. v. Natural Resources Defense Council, Inc., — U.S.

—, 46 U.S.L.W. 4301 (April 3, 1978) was handed down after

the Court of Appeals’ decision in this case. While the

unanimous decision in Vermont Yankee underscores the

principles of administrative law which have been consis-

tently adhered to by this Court and by the Congress for

many years, it also provided the federal courts with an un-

equivocal restatement of their proper role in reviewing

agency decision-making. The decision of the Court of

Appeals for the First Circuit might well have been different

had Vermont Yankee been available for its guidance at

the time the opinion was written.“ Therefore, while the

errors of law committed by the Court of Appeals — in light

of Vermont Yankee as well as previous precedents — war-

** While Vermont Yankee was cited to the Court of Appeals in

the petitioner's out of time motion for reconsideration, App. 141,

the Court of Appeals one-line denial, App. 174, gives no assurance

that the Court of Appeals considered, or indeed thought itself em-

powered to consider, Vermont Yankee.

18

rant reversal of the decision below, it would be consistent

with this Court’s past practice to grant the petition for cer-

tiorari, vacate the judgment of the Court of Appeals, and

remand the case to that court for reconsideration in light

of Vermont Yankee.

Respectfully submitted,

Tomas G. Diox ax, Jr.

G. Mans RALI. Moriarty ;

R. K. Gap m

225 Franklin Street |

Boston, Massachusetts 02110

(617) 423-6100

Attorneys for the Petitioner

Of Counsel:

Farr S. Hocuserc

Rores & Gray

225 Franklin Street

Boston, Massachusetts 02110