# Appendix — Public Service Co. of New Hampshire v. Nuclear Regulatory Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 1046

## Text

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SEP 19 1978 |

Iw Tar | MICHAR RODAK, JR., CLERK

Supreme Court of the United States---—----—~
Octosrer Term, 1978

No. 78- 73-468

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,
Petitioner,

V.

UNITED STATES NUCLEAR REGULATORY
COMMISSLON

and

UNITED STATES OF AMERICA,
Respondents.

APPENDIX TO THE PETITION FOR
A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

TxHomas G. Dianan, Jr.

G. MarsHatt Moriarty
R. K. Gap, mr

WruiaM §S. Eacetine
225 Franklin Street
Boston, Massachusetts 02110
(617) 423-6100
Of Counsel: Attorneys for Petitioner
Rorses & Gray
225 Franklin Street
Boston, Massachusetts 02110

TABLE OF CONTENTS

Judgment and Opinion in Public Service Company of
New Hampshire v. NRC, —— F.2d —__ (1st Cir. 1978)

Public Service Company of New Hampshire (Seabrook
Station, Units 1 & 2), LBP-76-26, 3 NRC 857 (1976)
SUID ica saa he ee raed oa Keres wk

Public Service Company of New Hampshire (Seabrook
Station, Units 1 & 2), ALAB-422, 6 NRC 33 (July 26,
1 ot wR RR ee Fe ant

THE STATE OF NEW HAMPSHIRE PUBLIC
UTILITIES COMMISSION, DOCKET NO. D-SF
6205, PUBLIC SERVICE COMPANY OF NEW
HAMPSHIRE, SEABROOK NUCLEAR POWER
PLANT, CERTIFICATION OF SITE AND FACIL-
ITY COMMISSION REPORT AND ORDER NO.
11,267, JANUARY 29, 1974 and Appendices 3, 6, 9
OU Tt GR oon os Ce es oe

The Detroit Edison Company (Greenwood Energy Cen-
ter, Units 2 & 3), ALAB-247, 8 AEC 936 (1974) .

Statutes and Regulations __.
Atomic Energy Act §§ 11(v), 11(ee), 271 .
OU Re See Ca cece es. . Awe Hay tee

National Environmental Policy Act, § 102 ......

PAGE

19

37

117.
117
118

118

United States Court of Appeals

For the First Circuit

No. 77-1419

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,

. Petitioner,

UNITED STATES NUCLEAR REGULATORY
COMMISSION,
and

UNITED STATES OF AMERICA,
Respondents.

SOCIETY FOR THE PROTECTION OF
NEW HAMPSHIRE FORESTS,
Intervenor.

DECREE
Entered June 21, 1978

This cause came on to be heard upon petition for review
of an order of the Nuclear Regulatory Commission, and was
argued by counsel.

Upon consideration whereof, It is now here ordered,
adjudged and decreed as follows: The petition for review
is dismissed.

A True Copy By the Court:
ATTEST: Dana H. Gauuup, Clerk
Dana H. Gauuup, Clerk By Francis P. Scieurano
Chief Deputy Clerk.

By Francis P. Scieuiano
Chief Deputy Clerk.

~

United States Court of Appeals
For the First Circuit

No. 77-1419
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,
PETITIONER,
v.
UNITED STATES NUCLEAR REGULATORY
COMMISSION, ET AL.,

RESPONDENTS,

SOCIETY FOR THE PROTECTION OF
NEW HAMPSHIRE FORESTS,

INTERVENOR.

PETITION FOR REVIEW OF A DECISION OF THE
UNITED STATES NUCLEAR REGULATORY COM MISSION

Before Corrin, Chief Judge,
CampsBELL and Bowness, Circuit Judges.

Thomas G. Dignan, Jr., with whom R. K. Gad III, John A.
Ritsher, and Ropes & Gray were on brief, for petitioner.

Harry H. Voight, James P. McGranery, Jr., Robert S. Faron,
LeBoeuf, Lamb, Leiby & MacRae, Peter A. Marquardt, and Charles
W. Campbell on brief for Edison Electric Institute, The Detroit
Edison Company, and Public Service Company of Indiana, amici
curiae.

Stephen S. Ostrach, Attorney, Office of the General Counsel,
United States Nuclear Regulatory Commission, with whom Jerome
Nelson, General Counsel, Stephen F. Eilverin, Solicitor, Richard
S. Mallory, Attorney, Office of the General Counsel, United States
Nuclear Regulatory Commission, and Peter R. Steenland, Jr., Chief,
Appellate Section Land and Natural Resources Division, United
States Department of Justice, were on brief, for respondent.

Robert A. Backus, with whom Harvey Winchester and O’Neill
Backus Spielman Little were on brief, for Society for the Protec-
tion of New Hampshire Forests, intervenor.

PUBLIC SERVICE CO. OF N.H. UV. U.S. NUCLEAR REG. COMMN, = $}

June 21, 1978

Bownss, Circuit Judge. Petitioner, Public Service Com-
pany of New Hampshire (PSCO), challenges the propriety
of the Nuclear Regulatory Commission’s! (Commission)
order to reroute certain transmission lines tying the pro-
posed Seabrook Nuclear Power Station (Seabrook) to the
New England 345 KV transmission grid. PSCO maintains
that the order, drawn so as to minimize environmental
injury, is beyond the scope of the Commission’s power.
PSCO asserts that the Commission’s organic statute, speci-
cally section 271 of the Atomic Energy Act of 1954, 42
U.S.C. § 2018,? denies it the authority to designate such
routing and that the National Environmental] Policy Act
of 1969 (NEPA), 42 U.S.C. §§ 4321 et seqg., cannot confer
jurisdiction otherwise denied an administrative agency.
PSCO also claims that, in issuing the order, the Commis-
sion impermissibly preempted state authority.

The question we address, viz., whether the Commission
properly can assert jurisdiction over the routing of trans-
mission lines running forth from the nuclear reactor, is
one of first impression. At issue is the location of
approximately two of the 86 miles of transmission lines
that will emanate from Seabrook. The cost of the rerouting
represents a miniscule fraction of the total facility costs.
The underlying question of the Commission’s authority is,
nonetheless, an important one.

1The Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801
et seq. divided the responsibilities which had previously been held
by the Atomic Energy Commission into two bodies. The licensing
and related regulatory functions of the AEC were transferred to
the Nuclear Regulatory Commission (NRC); the operation of
government nuclear research and production facilities was lodged
with the Energy Research and Development Administration
(ERDA). 42 U.S.C. §§ 5814(c), 5841(f), 5842. We use the word
‘‘Commission’’ to refer both to the AEC and its regulatory suc-
cessor, the NRC.

2The pertinent statutory language is set out, infra, at page 12.

4 OPINION OF THE COURT.

We start with a statement of the background, then dis-
cuss NEPA, follow with an analysis of the Commission’s
jurisdiction, and finally comment on the question of pre-
eniption. \

Background

PSCO requested certification of its selected site and
facility from the New Hampshire Public Utilities Commis-
sion, as required by state law. NH RSA § 162-F (Supp.
1975). After lengthy hearings which started on June 19,
1972, and included over 5,800 pages of testimony, the certifi-
cate was granted by the Public Utilities Commission on
January 29, 1974.3 The certificate included the siting of
three transmission lines along the routes proposed by
PSCO. In its authorization the Public Utilities Commis-
sion added that the approved routes could be later modified
upon request, ‘‘should meaningful negotiation with re-
sponsible local authorities, regional commissions, ete. result
in any beneficial route relocations.”’

PSCO then submitted its plans for the nuclear facility
and transmission lines to the Atomic Safety and Licensing
Board.* The routing for the lines generally followed the

The actual procedure followed was that hearings were held
before the New Hampshire Bulk Power Facility Site Evaluation
Conmittee (NHSEC) and the Public Utilities Commission. NH
RSA 162-F:7 (Supp. 1975). The NHSEC then made conclusive
findings and sent those findings to the Public Utilities Commission,
NIi RSA 162-F:8 (I, Il) (Supp. 1975), which is charged with the
responsibility for issuing the certificate of site and facility, once
assured that the construction will not unreasonably adversely affect
the natural environment. NH RSA 162-F:8(I) (Supp. 1975).

* Applications for licenses are first heard by an Atomic Safety
and Licensing Board, 42 U.S.C. § 2241, 10 C.F.R. § 2.721, which
may grant or deny issuance of the license. Any aspect of that
decision may be appealed by any party to an Atomic Safety and
Licensing Appeal Board, 10 C.F.R. § 2.785(a), 10 C.F.R. § 2.762,
which enjoys all the powers of review of the Commission. See
gencrally Murphy, Atomic Safety and Licensing Boards: An Ex-
periment in Administration Decision Making on Safety Questions,
33 Law & Contemp. Prob. 566 (1968). Petition for review of the

PUBLIC SERVICE CO. OF N.H. U. U.S. NUCLEAR REG. COMMN. 3)

routes previously submitted to and conditionally approved
(see discussion on preemption, infra, at 16) by the New
Hampshire Public Utilities Commission. After extensive
hearings, the Licensing Board approved PSCO’s applica-
tion with two exceptions. The Board conditioned the Sea-
brook permits on the rerouting of one of the lines around
the Pow Wow River-Cedar Swamp rather than PS('O’s
proposed route directly through it. The Board reasoned
that the Pow Wow River-Cedar Swamp was an area con-
taining ‘‘relatively dense or pure stands of the Atlantic
White Cedar, a species found only in the Atlantic coastal
regions ... which is becoming increasingly scarce as its
available habitat is reduced by econonie development.’’
The Board also found the marshlands to be an important
habitat and flight lane for migratory waterfowl; because
of the Pow Wow River, the area is surrounded by an exten-
sive marshland complex, making it one of the few extensive
river-marsh ecosystems in southeastern New Hampshire.
The Swamp environs are recognized as a natural area by
the New England Natural Areas Inventory. Intervenor in
this action, the Society for the Proteetion of New Hamp-
shire Forests, has approximately 10-15% of the area under
its protective ownership, and uses the area, as do campers,
canoeists and youth groups, for nature outings. The Board
found that PSCO’s propos d transmission corridor through
the mid-point of the marsh, using two 200-foot high steel
lattice-work towers, would result in a diversion of a signifi-
eant number of migratory waterfowl from the Swamp
and would constitute a ‘‘visual insult’’ to the relatively
pristine area. The Board proposed a dogleg which would

Appeal Board decision may be sought before the Commission itself.
10 C.F.R. § 2.786, as amended, 42 Fed. Reg. 22128, effective
June 1, 1977. The Licensing Board issued its initial devision,
ordering the change in routes, on June 29, 1976; on July 26, 1977,
the Appeal Board affirmed the order; on September 15, 1977, the
Commission declined review, thus leaving in effect the order of the
Licensing Board as affirmed by the Appeal Board.

6 OPINION OF THE COURT,

skirt the edge of the natural area and would use 75-foot
wooden H-frames, compatible with the surrounding forest.

The Licensing Board also directed that the second line
under dispute be routed directly through the Packer Bog,
rather than the previously approved row’ «© ich would
skirt the edge of the Bog, but would requi:. «c cutting of
white cedar. PSCO itself indicated that it preferred the
route directly through the Bog, but complains before this
court that the Board could not have ‘‘ordered”’ it to adopt
this route.>

NRC's Responsibility Under NEPA

The National Environmental Policy Act of 1969 (NEPA),
42 U.S.C. §§ 4321 et seq., articulated a mandate to federal
agencies to ‘‘use all practicable means’’ to avoid environ-
mental ‘‘degradation,’’ and to preserve ‘‘natural aspects
of our national heritage’’ to the extent consistent with
‘‘other essential considerations of national policy ... .’’
42 U.S.C. § 4331(b). See also Federal-Aid Highway Act
of 1962, 23 U.S.C. § 1388; Department of Transportation Act
of 1966, 49 U.S.C. § 1653(f). Congress directed federal
agencies to consider ‘‘to the fullest extent possible’’ the
environmental impact of their policies, regulations, and
actions. 42 U.S.C. §¢ 4332. This charge is ‘‘neither acci-
dental nor hyperbolic.’’ Flint Ridge Dev. Co. v. Scenic
Rivers Assn., 426 U.S. 776, 787 (1976). NEPA is activated
whenever a major federal action may significantly affect
the human environment. 42 U.S.C. § 4332(2)(C). Licensing

> Intervenor Society for the Protection of New Hampshire Forests
had urged that the Licensing Board either require PSCO to avoid
the Pow Wow River-Cedar Swamp area entirely or construct a
larger dogleg around the marsh. The Licensing Board rejected
Forests’ routes because the increased cost for the Swamp dogleg
would not be justified by the minimal environmental improvement.
Forests argued that on the second line, PSCO should avoid the
Packer Bog completely. The Board noted, in rejecting Forests’
route, that it might prove less expensive overall, but that it
would increase the visual impact in the Town of Greenland, New
Hampshire.

PUBLIC SERVICE CO, OF N.H. V. U.S. NUCLEAR REG. COMMN. 7

of a nuclear power station by a federal regulatory con-
mission is a major federal action. NRDC v. NRC, 547 F.2d
633, 638 (D.C. Cir. 1976), rev’d on other grounds sub nom.
Vermont Yankee Nuclear Power Corp. v. NRDC, 46 U.S.
L.W. 4301 (Apr. 3, 1978). Sce also 40 C.F.R. § 1500.5(a) (2) ;
Murphy, The National Environmental Policy Act and the
Licensing Process: Environmentalist Magna Carta or
Agency Coup de Grace?, 72 Colum. L. Rev. 963, 966-967
(1972).

NEPA’s mandate has been given strict enforcement in
the courts, with frequent admonitions that it is insufficient
to give mere lip service to the statute and then proceed
in blissful disregard of its requirements. See, c.g., [lint
Ridge Dev. Co., supra, 426 U.S. at 787-788; County of Suf-
folk v. Seeretary of Interior, 562 F.2d 1368, 1389 (2d Cir.
1977), cert. denied, 46 U.S.L.W. 3518 (February 21, 1978) ;
Silva v. Lynn, 482 F.2d 1282, 1287 (1st Cir. 1973); Calvert
Cliffs’ Coord. Com. v. AEC, 449 F.2d 1109, 1117 (D.C. Cir.
1971). Section 102(a)(C), 42 U.S.C. § 4832(a)(C), is an
‘faction foreing’’ provision, Kleppe v. Sierra Club, 427
U.S. 390, 409 (1976); Greene County Planning Board vy.
FPC, 455 F.2d 412, 415 (2d Cir.), cert. denied, 409 U.S. 849
(1972), which imposes a duty upon federal agencies to act
so as to effectuate the purposes of the statute to the fullest
possible degree. See 115 Cong. Rec. (Part 30) 40416, 40419
(1969). The directive to agencies to minimize all unneces-
sary adverse environmental impact obtains except when
specifically excluded by statute or when existing law makes
compliance with NEPA impossible. /iint Ridge, supra,
426 U.S. at 787-788; Calvert Cliffs, supra, 449 F.2d at 1115
and n.12; 40 C.F.R. § 1500.4(a); 115 Cong Ree. 39703
(1969). As stated by the court in Calvert Cliffs, ‘‘Unless

6 NEPA provides the congressional mandate to force ‘‘timely and
comprehensive consideration of non-radiological pollution effects
in the planning of installations [ ]’’, New Hampshire v. AEC, 406
F.2d 170, 176 (1st Cir.), cert. denied, 395 U.S. 962 (1969), which
was previously missing.

S OPINION OF THE COURT.

[specific statutory] obligations are plainly mutually exclu-
sive with the requirements of NEPA, the specific mandate
of NEPA must remain in force.’’ 449 F.2d at 1125. Unless
there are specific statutory provisions which necessarily
collide with NEPA, the Commission was under a duty to
consider and, to the extent within its authority,’ minimize
environmental damage resulting from Seabrook and its
transmission lines.

Does the NRC’s Organic Statute Bar The Commission
From Exercising Any Authority Over Transmission Lines?

We examine the Vommission’s organic statute, 42 U.S.C.
§§ 2011 et seq. and 42 U.S.C. §§ 5801, 5841-5849, to deter-
mine whether there is an inevitable clash between it and
the vxereise by the Commission in this instance of its
NEPA-mandated duty. Both the Atomic Energy Act of
1954 and the Energy Reorganization Aci of 1974 confer
broad regulatory functions on the Commission and specifi-
eally authorize it to promulgate rules and regulations it
deenis necessary to fulfill its responsibilities under the Acts.
42 U.S.C. § 2201(p). Ina regulatory scheme where substan-
iin] diseretion is lodged with the administrative agency
chirged with its effectuation, it is to be expected that the
agency will fill in the interstices left vacant by Congress.
See Philips Petroleum Co. v. Wisconsin, 347 U.S. 672
(1954); Henry v. PPC, 513 F.2d 395, 402 (D.C. Cir. 1975).
The Atomie Energy Act of 1954 is hallmarked by the
amount of discretion granted the Commission in working
to achieve the statute’s ends. The Act’s regulatory scheme
‘‘is virtually unique in the degree to which broad responsi-

*7'The Commission cited Henry v. FPC, 513 F.2d 395 (D.C. Cir.
1975), for the proposition that NEPA enlarges the proper scope
of an agency’s jurisdiction. We need not address that question
since we find that transmission lines are within the proper scope of
the agency’s jurisdiction. See discussion, infra, ‘‘A. The Commis-
sion’s Interpretation.’’

PUBLIC SERVICE CO. OF N.H. VU. U.S. NUCLEAR REG. COMMN, 9)

bility is reposed in the administering agency, free of close
prescription in its charter as to how it shall proceed in
achieving the statutory objective.’’ Siegel v. AEC, 400 F.2d
778, 783 (D.C. Cir. 1968). The agency’s interpretation of
what is properly within its jurisdictional scope is entitled
to great deference, Power Reactor Co. vy. Electricians, 367
U.S. 396, 408 (1961); Nader v. NRC, 513 F.2d 1045, 1055-56
(D.C. Cir. 1975), and will not be overturned if reasonably
related to the language and purposes of the statute. //ardin
v. Kentucky Utilities Co., 390 U.S. 1, 8 (1968); NLRB vy.
Hearst Publications, 322 U.S. 111, 131 (1944); Bangor and
Aroostock Ry. Co. v. ICC, No. 77-1082, slip op. 10 n.8 (1st
Cir. Mar. 30, 1978).

A. The Commission’s Interpretation

The crucial issue here is the Commission’s interpretation
of the term ‘‘utilization facility.’’® The Commission has
been granted explicit authority by Congress to expand upon
the statutory definition: ‘‘The term ‘utilization facility’
means... (2) any important component part especially
designed for such equipment or device as determined by
the Commission.’’ 42 U.S.C. § 2014(ec). Pursuant to its
rule making authority, the Commission issued the following

* definition:

‘Utilization facility’? means any nuclear reactor other
than one designed or used primarily for the formation:
of plutonium or U-233.

Note: Pursuant to subsection 1lv. and 1lee. [42 U.S.C.
§ 2014(v), (ec)], respectively, of the Act, the Com-
mission may from time to time add to, or otherwise
alter, the foregoing definitions of production and utiliz-
ation facility. It may also include as a facility an

8Tt is illegal to build or use any utilization facility except in
accordance with a license issued by the Commission. 42 U.S.C.
§ 2131.

10 OPINION OF THE COURT.

important component part especially designed for a
facility....
10 C.F.R. § 50.2(b).

At least since 1968, the Commission has included in its
working definition of ‘‘ utilization facility’’ both the nuclear
reactor and ‘‘equipment associated with a nuclear reactor’’
since *‘associated equipment may be integral to the oper-
ation of a reactor and... such equipment can have
nuclear safety significance.’’ Philadelphia Electric Com-
pany (Peach Bottom Atomic Power Station Units 2 and 3),
4 AEC 109, 111-112 (1968). In Detroit Edison Company
(Greenwood Energy Center, Units 2 and 3), ALAB-247;
8 AEC 936 (1974), the Commission construed utilization
facility to inelude transmission lines running forth from
the nuclear plant, affirming the broad interpretation given
in Peach Bottom. This posture by the Commission has
heen steadily maintained ever since. See, e.g., Virginia
Electric € Power Co. (North Anna Nuclear Power Station,
Units 1 and 2), ALAB-325, NRCI-76/4 404 (April 16, 1976),
petition for review dismissed sub nom. Culpeper League
for Environmental Protection v. NRC, Nos. 76-1484 and
76-1582 (D.C. Cir. March 16, 1978); Kansas Gas and Elec-
tric Company (Wolf Creek Nuclear Generating Station,
Unit No. 1), 5 NRC 1 (1977).

In light of the Commission’s longstanding reliance on
this definition, and its seemingly reasonable relation to the
language and purposes of the statute, it is incumbent on
the petitioner to point out in what manner the interpre-
tation given by the Commission is so contrary to the pur-
poses of the regulations or statute as to warrant interven-
tion and correction by this court. See Northern Ind. Pub.
Serv. Co. v. Walton League, 423 U.S. 12, 14-15 (1975).
This, petitioner has failed to do. PSCO’s petition, in es-
sence, is a collateral attack on the Commission’s determi-
nation that ‘‘utilization facility’’ includes transmission

PUBLIC SERVICE CO. OF N.H. UV. U.S. NUCLEAR REG. COMMN, 11

lines. This is a particularly inappropriate forum in which
to launch such an attack. There is nothing in the material
before us which suggests the propriety of our deciding,
in the complete absence of any factual background on the
subject, that the Commission erred in asserting that trans-
mission lines are properly construed as coming within the
definition of ‘‘utilization facility.’’ Cf. Gage v. AEC, 479
F.2d 1214, 1220-1221 (D.C. Cir. 1973). We are mindful of
the broad grant of authority given to the Commission in
making such determinations, see 42 U.S.C. § 2014(cc) (2),
and the deference due this determination. Power Reactor
Co., supra, 367 U.S. at 408; cf. Vermont Yankee Nuclear
Power Corp. v. NRDC, 46 U.S.L.W. 43801, 4305-4306 (April
3, 1978). Naturally, nothing precludes PSCO, or any inter-
ested person, from petitioning the Commission to amend
or rescind its determination that ‘‘utilization facility’’
includes equipment associated with a reactor, such as trans-
mission lines, See 10 C.F.R. §§ 2.802 and 2.803.

B. The Commission and Congress

As noted, supra, since 1968, the Commission has claimed
the authority to assert jurisdiction over equipment associ-
ated with a nuclear reactor and, at least since 1971 (when
regulations relating to transmission lines were first pro-
posed), has claimed the specific right to oversee the siting
of transmission lines.* While ordinarily, silence on the part
of Congress regarding activity by an administrative agency
should not be liberally read as approval, in the case of the
Commission, inaction by Congress has been read as ‘‘de
facto acquiescence in and ratification of the Commission’s

®It is pertinent to mention that the exercise by the Commission
of jurisdiction over transmission lines has been inferentially
assumed correct in other court decisions. See Culpeper League
for Environmental Protection v. NRC, Nos. 76-1485 and 76-1532
(D.C. Cir. March 16, 1978). Cf. Gage v. AEC, 479 F.2d 1214 (D.C.
Cir. 1973).

12 OPINION OF THE COURT,

licensing procedure by Congress.’’ Power Reactor Co.,
supra, 367 U.S. at 409° See also New Ilampshire v. AEC,
406 F.2d 170, 174 (1st Cir.), cert. denied, 395 U.S. 962
(1969) ; 42 U.S.C. § 2252. This is due to the unusual over-
sight by the Joint Connmuittee on Atomic Energy™ regard-
ing the Commission’s activities, a special relationship
which, as we noted once before, is ‘‘rarely embodied in
positive law.’’ 406 F.2d at 174. For ten years, the Com-
mission has given an expanded reading to the term ‘‘utiliz-
ation facility’? to include equipment associated with a
nuclear reactor.” In light of the special statutory relation-
ship between the Commission and the Joint Committee,
and in view of the Supreme Court’s conments in Poorer
Reactor, we think it fair to posit that had Congress viewed
this as an unwarranted expansion of jurisdiction, restrie-
tive action would have been taken. Compare, Note, The

©The Court in Power Reactor placed importance on the fact
that the interpretation being challenged had been brought to the
attention of the Joint Committee on several occasions. 367 U.S.
at 408. There is nothing in the record before us to show whether
the definition of ‘‘utilization facility’’ as including equipment
associated with a nuclear reactor has been questioned before the
Joint Committee. However, in light of the strong mandate to exer-
cise supervision over the Commission and the onus placed on the
Commission to keep the Joint Committee ‘‘fully and currently”’
informed of all of its activities, 42 U.S.C. § 2252(a), it is not
unreasonable to assume that the Joint Committee has been apprised
of the Commission's definition,

On September 20, 1977, the Joint Committee was abolished
and all funetions previously performed by it were transferred to
comunittees of the Senate and House of Representatives having
Jurisdiction over the subject matter previously overseen by the
Joini Committee, 42 U.S.C. § 2258, Pub.L. 95-110 § 1, 91 Stat. 884.

2 Tn addition, the Commission published its regulations dealing
specifically with environmental considerations of the transmission
lines in the Federal Register, sce ¢.g., 36 Fed. Reg. 22,848 (Dec. 1,
1971) and 37 Fed. Reg. 5745 (Mar. 21, 1972). The regulations
appear in 10 C.F.R. § 50.10(e) (1) (iv). The regulations were pro-
mulgated to implement NEPA, sce Gage v. AEC, 479 F.2d 1214,
1215 (D.C. Cir. 1973), following the Calvert Cliffs decision that

prior Commission regulations inadequately complied with NEPA
requirements,

PUBLIC SERVICE CO. OF N.H. VU. U.S. NUCLEAR REG. COMMN, 13

Central Intelligence Agency: Present Authority and Pro-
posed Legislative Change, 62 Va.L.Rev. 332, 364-370 (1976).

(, 42 U.S.C. § 2018
We next turn our attention to petitioner’s contention that
section 271 of the Act, 42 U.S.C. § 2018, is a positive bar
to the Commission’s exercise of any jurisdiction over trans-
mission lines. The pertinent language in the statute reads:
Nothing in this Act shall be construed to affect the
authority or regulations of any Federal, State, or local
agency with respect to the generation, sale, or trans-
mission of electric power produced through the use of
nuclear facilities licensed by the Commission .. . .
Petitioner interprets this to mean the Commission is
barred from asserting any authority over transmission
lines. We cannot agree. In the first place, even were there
a proscription (which there is not) against the Commis-
sion’s exercise of jurisdiction over transmission of elee-
tricity, such proscription would not necessarily run to the
exereise of jurisdiction over transmission lines. In the
second place, the language of seetion 271 is that of main-
taining the authority of other agencies; it is not a back-
handed manner of withdrawing jurisdiction of the Com-
mission over subjects properly within its ambit. The section
is a statement that the Commission will not preempt exist-
ing authority in the areas mentioned. Petitioner’s flawed
interpretation can perhaps best be exposed by extending
its reading to the entire section, and not just to the word
‘‘transmission.’’ If we were to adopt petitioner’s position
that section 271 operates as a positive bar, then it must
perforce extend to the entire section, viz., the Commission is
also barred from maintaining jurisdiction over the gener-
ation or sale of electricity. Since commercial nuclear power
plants’ raison d’etre is to generate electricity and since
they are constructed to perform this function, petitioner’s

14 OPINION OF THE COURT.

strained reading of section 271 would mean that the
Commission is barred from any exercise of jurisdiction over
the very plant itself. We think this result demonstrate
the fundamental error in PSCO’s interpretation.”

That the interpretation suggested by PSCO is not war-
ranted can be seen as well from a review of the legislative
history of section 271. In light of the prior monopolistic
control by the federal government over all aspects of uu-
clear energy, there was concern by certain senators that
the new grant of authority to private industry to develop
nuclear power for generation of electricity might mean
that the traditional regulatory bodies would be displaced.
There was particular worry that the Federal Power Com-
mission might be ousted from regulating electricity pro-
duced by nuclear energy. Much of the debate on section 271
revolved around this preoccupation. While being assured
by the sponsor of the Act, Senator Hickenlooper, that ‘sec-
tion 271 saved to the Federal Power Commission its reyn-
latory role for electricity produced by nuclear power, Sena-
tor Humphrey finally prevailed in urging the Senate to
pass section 272, 42 U.S.C. § 2019, which does so in specific
language. Nothing in the floor debates suggests that section
271 was other than a garden-variety nonpreemption clause.
See 100 Cong. Ree. 12015-12021, 12196-12201 (1954)."

13. Sec also 42 U.S.C. § 5847 which directs the Commission to
conduct a national survey for future nuclear energy sites. In
making the survey, the Commission is instructed specifically to
include consideration of transmission line rights-of-way. This sug-
gests again that PSCO’s reading of section 271 as a total bar to
the exercise of any jurisdiction over transmission lines is untenuble.

** Excerpts from the Senate debates underscore the interpreta-
tion of section 271, 42 U.S.C. § 2018, as a nonpreemption section.

Mr. HICKENLOOPER. [§ 271] is designed to keep the
regulatory authority exactly as it is now, traditionally and
under the law.

Mr. HUMPHREY. What [§ 271] really ineans ... is that
there is nothing in this act that denies the Federal Power
Commission the right to regulate. That is what it means, but

PUBLIC SERVICE CO. OF N.H. UV. U.S. NUCLEAR REG. COMMN, 15

As we note infra, this case does not present a situation
where federal and state authority are in conflict. The New
Hampshire Public Utilities Commission has indicated a
willingness to be flexible in the routes PSCO may use for
the transmission lines, and the Commission has at this
juncture done nothing more than require PSCO to take
advantage of this flexibility to minimize adverse environ-
mental impacts. The Commission’s order did not preempt
the Public Utilities Commission’s authority, but rather
complemented it. We need not decide, therefore, whether
section 271 might apply to a situation where the state
agency with authority over siting has an irreconcilable
conflict with the Commission, as this case does not present
that problem.

D. The Commission’s Right to Condition Licenses

We turn now to a consideration of whether it was error
for the Commission to condition its approval of PSCO’s
license application on the use of the Commission-approved

it does not say how, and what [I ] want{ ] to be sure is
that the ‘‘how’’ on electrical energy created by atomic matter
is the same ‘‘how’’ that is on hydro-generated electricity ;
that is all.

Mr. HUHPHREY. What the act provides now is a broad
grant, saying that there is nothing in the act that will deny
a Federal agency from regulating it. That is not good
enough; that is what the Senator from Minnesota ealls a
negative authorization of potential authority.

Mr. HICKENLOOPER. What section 271 does is to make
clear that this act does not interfere in any way with the juris-
diction of the Federal Power Commission over such activities,
or with State agencies where they have jurisdiction, or with
local agencies where they have jurisdiction.

It is not an authority given in a negative way. It is a
positive negation of any intent by this statute to interfere
with the existing laws and the existing authorities, State and
Federal, that have to do with electricity.

100 Cong. Ree. 12015, 12016, 12197 (1954).

16 OPINION OF THE COURT.

routes.> Our preceding analysis compels the finding that
there is no ‘‘clear and unavoidable,’’ Flint Ridge, supra,
426 U.S. at 788, statutory conflict which would prohibit the
Commission from complying with NEPA’s mandate.’® Once
having found that the Commission has jurisdiction over the
transmission lines, we think it clear that, under the dictates
of NEPA, it was obliged to minimize adverse enviromnental
impact flowing therefrom.’? We quote Judge Wright from
the Calvert Cliffs opinion, ‘‘[e}learly, it is pointless to
‘consider’ environmental costs without also seriously con-
sidering action to avoid them.’’ 449 F.2d at 1128. The Com-
mission has statutory authority to condition licenses. 42
U.S.C. §§ 2131, 2133(a), 2233. Cf. 5 U.S.C. § 551(9) ; North
Anna nv. Coaiition v. NRC, 533 F.2d 655, 658 (D.C. Cir.
1976). In this instanee, the Commission used one of its
statutory powers in the furtherance of NEPA, whose man-
date the Commission must follow. The Commission is under
a dual obligation: to pursue the objectives of the Atomie
Euergy Act and those of the National Environmental Policy
Act. ‘‘The two statutes and the regulations promulgated
under each must be viewed in para [sie] materia.’’ Citizens

15 Petitioner concedes that there is adequate record support for
the finding that the Commission’s routes, on a cost/benefit basis,
are superior; it maintains nonetheless that the Commission should
not have ordered it to adopt said routes.

16 We, therefore. find no conflict with Kitchen v. FCC, 464 F.2d

801 (D.C. Cir. 1972), where the court found no NEPA obligations
to attach to matters expressly outside the statutory jurisdiction
of the administrative agency. The instant case is clearly distin-
guishable, since we agree with the Commission that it does have
the requisite jurisdiction over the lines.

7To the extent that PSCO argues that the Commission should
have ‘‘determined’’ the environmental impact of the transmission
lines and, even finding them unnecessarily harmful to the environ-
ment, should have accepted them, it is clearly wrong, While one
of the purposes of the environmental impact statement is to serve
as an environmental full disclosure law, Silva v. Lynn, 482 F.2d
1282, 1285 (1st Cir. 1973), NEPA requires more. Calvert Cliffs,
supra, 449 F.2d at 1128.

PUBLIC SERVICE CO, OF N.H. UV. U.S. NUCLEAR REG. COMMN, 17

for Safe Power v. NRC, 524 F.2d 1291, 1299 (D.C. Cir.
1975). We find that the Commission correctly discharged
its responsibilities here.

lias There Been Preemption?

Petitioner finally presses us to find that the order by the
Commission has impermissibly preempted state regulatory
authority by ordering a route different from that approved
by the New Hampshire Public Utilities Commission. We
easily dismiss this argument. As the Public Utilities Com-
mission stated in its approval, the routes could later be
inodified upon request if necessitated by negotiation with
other agencies. It held specifically that the authority to
construct was conditional upon PSCO’s obtaining the
‘‘necessary construction and operating permits and/or
licenses from the U.S. Atomie Energy Commission.’’ Since
one of the routes submitted to the Commission by PSCO
differed from that previously approved by the New Hamp-
shire Publie Utilities Commission, we find it surprising that
PSCO should now argue that the state-approved routes
were final and binding and that any change authorized by
the Commission is in direct conflict with the State of New
Hampshire. Indeed, PSCO stated before the Commission
that approval from the state for the different route would
be ‘‘relatively easy to obtain.’’ Petitioner thus clearly

anticipated that the Public Utilities Commission would

entertain a request to alter the approved routes. Further-
more, at oral argument the Commission stated that, should
PSCO be unable to obtain appreval of the new routing
from the New Hampshire Public Utilities Commission, it
could come back to the Commission. We, therefore, find no
ineluctable conflict between New Hampshire and the Com-
mission on this question. It appears that the matter has
been purposely left in a fluid state so that head-on collision
between the federal and state regulatory bodies could be

iS OPINION OF THE COURT.

averted. Moreover, PSCO’s contention that there is pre-
enption by the Commission is seriously undermined by
the fact that the State of New Hampshire is not a party
here to contest the purported arrogation by the Conimiis-
sion of state authority.

The Supreme Court, in analyzing statutes to ascertain
whether preemption by the federal government has oc-
curred, has looked to such factors as whether the state and
federal authority is conflicting; contrary to; repugnant to;
irreconcilable with; inconsistent with; in violation of each
other. See Perez v. Campbell, 402 U.S. 637, 649 (1971);
Florida Avocado Growers v. Paul, 373 U.S. 132, 142-143
(1963); Jlines v. Davidowitz, 312 U.S. 52, 67 (1941);
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 39 (1824). See also
Massachusetts v. United States, 46 U.S.L.W. 4280 (Mar.
29, 1978). We cannot find a preemption issue on so skimpy
a basis as that presented here. The posture of the ease
before us suggests no ‘‘inevitable collision,’’ Florida Aro-
cado Growers, supra, 373 U.S. at 143, between the authority
exercised by the Commission and that by the New Hamp-
shire Publie Utilities Commission.

The petition for review is dismissed.

Adm. Office, U. 8. Courts — Blanchard Press, Inc., Boston, Mass.

IES:

Wich ES

“Scrat

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19
[3 NRC 857]
LBP-76-26

UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION

ATOMIC SAFETY AND LICENSING BOARD

Joun M. Frysiax, Chairman
Marvin M. Mann
Ernest O. Sato

IN THE MATTER OF

PUBLIC SERVICE COMPANY | Docker Nos. 50-443
OF NEW HAMPSHIRE, er At. 50-444

(SEABROOK STATION, UNITS 1 AND 2)

June 29, 1976

Upon application for construction permits for Seabrook
Station, Units 1 and 2, the Licensing Board issues its initial
decision, making findings of fact and conclusions of law
and authorizing the issuance of construction permits for
both units, subject to several conditions.

TECHNICAL ISSUES DISCUSSED:

Organization and management; seismic design criteria;
evacuation plan; condenser cooling system effects; need for
power; impact of plant upon tourism; and consideration of
alternatives.

20

INITIAL DECISION

(Construction Permit)

APPEARANCES

ELeaNnor D, Acueson, Esq., THomas G. DIGNAN, JR.,
Ksq., and Joun A. RitsHer, Esq., for the Appli-
cants.

Rosert A. Backus, Esq, for Intervenors Seacoast
Anti-Pollution League, The Audubon Society of
New Hampshire, and Society for the Protection of
New Hampshire Forests.

Antuony Z. Roisman, Esq., Davin S. FLEIscHAKER,
Esq., Karin P. SHetpon, Esq., and Stuart Buve-
STONE, Esq., for Intervenor New England Coalition
on Nuclear Pollution.

Ms. Exizasetu H, \\EINHOLD, pro se.

NorMan C. Ross, Ese., for Intervenor Donald B.
Ross.

Donatp W. Srever, Jr., Assistant Attorney Gen-
eral, for the State of New Hampshire.

ILLYN R. Weiss, Deputy Assistant Attorney Gen-
eral, for the State of Massachusetts.

Freperic S. Gray, Esq., THomas M. Bruen, Esq.,
and MicuaeL W. Grarney, Esq., for the U.S. Nu-
clear Regulatory Commission.

Pt haT UE REEET ER or ene

REE me

2]

[3 NRC 885-890]
G. Transmission Lines

Intervenor Forests contends that the transmission line
routes proposed by the Applicants will cause unreasonable
environmental degradation in light of available alternatives
(Third Prehearing Conference Order, {[ 30).

114. A total of three transmission lines operating at 345
KV will be required to deliver the power generated by the
two Seabrook units to the New England 345 KV transmis-
sion grid (ER, $3.9.1; FES, §3.8.2, § 4.1.2; Tr. 9066-70,
9073-75). Applicants’ proposed lines may be described as
follows: The first line runs in a generally northerly direc-
tion from the facility to the so-called Newington Station
(hereinafter the Seabrook-Newington line) ; the second line
runs generally westerly from the facility to the so-called
Seobie Pond substation (hereinafter the Seabrook-Scobie
line) ; and the third runs generally southwesterly across the
New Hampshire-Massachusetts border and thence to the
so-called Tewksbury substation (hereinafter the Seabrook-
Tewksbury line). The original proposed routings of these
lines are shown on maps in the ER. (ER, § 3.9; Figs. 3.9-1,
3.9-1A)

115. Asa result of hearings held by agencies of the State
of New Hampshire, an order was issued on January 29,
1974, by the NHPUC which ordered the issuance of a Cer-
tificate of Site and Facility for the New Hampshire portion
of the three lines, which, with some small variations, were
the same as those proposed in the ER. It is these routes
which, with a possible minor variation in the routing of the
Seabrook-Newington line in an area known as “Packer
Bog,” Applicants now propose to utilize. (NHPUC, Dkt.
No. D-SF6205 Public Service Co. of N.H. Seabrook Nuclear
Power Plant, Certificate of Site and Facility, Commission
Report and Order No. 11,267, January 29, 1974, Order No.
11,267 and PUC Appendix 3 — official notice taken at Tr.
8077; Applicants’ Exs. 17A, 18)

99)

116. In addition to the proposed routes, the Applicants
have described two overall alternate routings for the three
lines (ER, $10.9). “Alternate No. 1” would do away with
the Seabrook-Tewksbury line and have two lines running
parallel in a westerly direction from the facility to Scobie
Pond substation on the same route as the proposed Sea-
brook-Scobie line, and then two lines on a common right-
of-way running generally southeasterly from the Scobie
Pond substation to the Tewksbury substation. (ER, § 10.9,
p. 10.9-1; Fig. 10.9-1)

117. Alternate No. 1 has been rejected by Staff and Ap-
plicants due to the major environmental and aesthetic
impact caused by the routing of two transmission lines
through the Pow Wow River-Cedar Swamp Natural Area
(Applicants’ Testimony, post TR. 8081, p. 7; FES, § 9.2.4,
p. 9-13).

118. “Alternate No. 2” as proposed would do away with
the Seabrook-Scobie line and would have two lines running
parallel in a generally southwesterly direction from the
facility to the Tewksbury substation on the same route as
the proposed Seabrook-Tewksbury line, and then one line
running generally north northeasterly from Tewksbury sub-
station to the Seobie Pond substation (ER, § 10.9; Fig.
10.9-2).

119. A study conducted by Applicants revealed that “Al-
ternate No. 2” as proposed would have a detrimental effect
on system stability and that consideration of system sta-
bility dictated that the second line from Seabrook to the
Tewksbury substation as contemplated by “Alternate No. 2”
would have to electrically by-pass the Tewksbury substation
and extend to, and terminate at, the so-calied Sandy Pond
substation (hereinafter referred to as “Alternate No. 2”
with the Sandy Pond extension) (FES, p. A-9; Fig. A4.1-2;
FES, p. A-19; Applicants’ Testimony, post Tr. 9239, pp. 1-4;
Tr. 8304).

PS ~ S *

23

120. Adoption of the scheme of “Alternate No. 2” with
the Sandy Pond extension would require the expenditure of
more than $21,000,000, exclusive of right-of-way costs, in
excess of the cost of the three-line scheme as originally pro-
posed by the Applicants (FES, p. A-11; Applicants’ Testi-
mony, post Tr. 9239, pp. 4-8 and Sheets 1-9).

121. Staff recommends that Applicants’ proposed rout-
ings be approved with the exception that, with respect to
the Seabrook-Scobie line, the Applicants should be required
to “dogleg” the line around an area known as Cedar Swamp
which lies along the Applicants’ proposed route (FES, p. iv,
§ 4.1.2, pp. 4-4, 46; Fig. 4.2; § 9.2.4, pp. 9-13; Tr. 9673-77).

122. The Seabrook-Newington line will, upon leaving the
switchyard, run northerly along a railroad right-of-way in
part across the Hampton-Seabrook marsh a distance of
approximately 2.25 miles until it reaches a corridor occupied
by extant 34.5 KV lines owned by another utility. At that
point, the line turns westerly along that corridor for a dis-
tance of about 2 miles at which point the line turns north-
erly to run on a new corridor parallel to, but separate from,
an existing PSCO 34.5 KV corridor for a distance of about
0.75 miles where it then links up with the existing PSCO
34.5 KV corridor and proceeds northerly for about 2.25
miles into the northern part of the municipality of North
Hampton, New Hampshire. At this point, the Seabrook-
Newington line jogs northwesterly for a distance of about
0.75 miles, then back in an easterly direction a distance of
about 2.25 miles. The line then turns generaHy northerly
and runs about 2.5 miles through the southeast corner of the
Town of Greenland, New Hampshire, across the Greenland-
Portsmouth, New Hampshire border, skirting the fringes of
Packer Bog to the southeast and joins an extant 115 KV
corridor running between Scobie Pond substation and New-
ington Station and proceeds along that corridor in a gen-
erally northerly direction for a distance of about 5 miles to
Newington. The total line length is approximately 18 miles

24

and covers a straightline distance of approximately 14
miles. (Applicants’ Exs. 17A, 18)

123. Applicants have indicated a preference to deviate
from the proposed Seabrook-Newington route in the area of
Packer Bog. As approved by the New Hampshire Site
Evaluation Committee, the line would skirt the southeast-
erly edge of the Bog. Because this route would possibly
require the cutting of white cedar located on the edge of
Packer Bog (Tr. 8135), Applicants would prefer to go
straight through the Bog itself (Tr. 8135-36, Applicants’ Ex.
18). This route would avoid the cedar and also would mean
construction on a higher and drier strip of land than that
encompassed in the Site Evaluation Committee route (Tr.
9046-49, 9128-29).

124. The preposed Seabrook to Scobie line runs westerly
from the station on a new corridor in a generally westerly
direction a distance of some 12 or 13 miles to approximately
the border between the towns of Kingston and Danville,
New Hampshire. The line then turns northwesterly and,
with one jog, runs generally northwesterly approximately
4.5 miles through Danville to the existing Scobie Pond-New-
ington corridor. The line then follows this corridor a dis-
tance of about 9 miles in a west southwesterly direction and
then jogs westerly a distance of about one mile to join an
extant 345 KV corridor (The Maine Yankee line) which it
follows southwesterly about 1.75 miles into Scobie Pond
substation. The total line length is about 28.75 miles, to
cover a straight line distance of 25-26 miles. (Applicants’
Ex. 17A)

125. Only a small portion of the proposed Seabrook-
Tewksbury line lies in New Hampshire. The line proceeds
westerly from the station parallel on a common corridor
with the Seabrook-Scobie line a distance of about 5.5 miles
to a point in South Hampton. It then turns and runs abont
6 miles southerly crossing the New Ha:xpshire-Massachu-
setts border, and proceeds to the so-called West Amesbury

pe We as

25

substation. At this point, it picks up an existing 115 KV
corridor and follows that corridor a distance of about 23
miles to a point (Dracut Junction) where it joins an exist-
ing 115-230 KV corridor and proceeds southerly along that
corridor a distance of about 4.8 miles, to Tewksbury substa-
tion. Total line length is 39-40 miles, to cover a straight
line distance of 28-29 miles. (Applicants’ Ex. 17A)

126. The configuration proposed by the Applicants, as
well as all alternatives discussed herein, assumes the exist-
ence of two other 345 KY lines: one from Tewksbury sub-
station to Scobie Pond substation, which Applicants indicate
to be a future system requirement which will be built with
or without Seabruok; and a second line from Tewksbury to
Sandy Pond which is already under construction, towers
already having been erected, the right-of-way cleared, and
awaiting only the stringing of conductors. (Tr. 8093-95 as
corrected Tr. 8294-95; Tr. 9106)

127. The Pow Wow River-Cedar Swamp environs, com-
prising an area of approximately 1,000 acres (SPNHF Fx.
2, p. 3), is recognized as a natural area by the New England
Natural Areas Inventory, funded by the New England Re-
gional Commission (SPNHF Ex. 1, p. 2), and by the New
Hampshire State Soil Conservation Service and the New
Hampshire State Planning Office (Tr. 8912). The Society
for the Protection of New Hampshire Forests has approxi-
mately 10-15% of this area under its protective ownership,
which includes 50-60% of the dense or pure stands of the
Atlantic White Cedar in this area (Tr. 8237). Through the
center of this Natural Area flows the Pow Wow River, sur-
rounded by both sides by an extensive freshwater marsh-
land complex. This kind of extensive river-marsh ecosys-
tem is very uncommon in southeastern New Hampshire —
the nearest being approximately 100 miles away along the
Merry Meeting River. (SPNHF Ex. 2, p. 6; FES, p. 4-5;
Tr. 8229, 8557, 10148-10150) The Area contains relatively
dense or pure stands of the Atlantic White Cedar, a species

26

found only in the Atlantic coastal regions of the United
States, which is becoming increasingly scarce as its avail-
able habitat is reduced by economic development (FES, p.
4-5; Tr. 9614-9615, 10148-10150).

128. Because of the existence of the Pow Wow River
marshlands, this area is an important habitat and flight lane
for migratory waterfowl and thus is one of the few areas in
New Hampshire used by the Department of Fish and Game
for its pre-season waterfowl studies and census (SPNHF
Ex. 2, p. 3; Tr. 10133-10134). The Pow Wow River marsh-
lands measure approximately 1,400 feet across, where the
Applicants’ proposed route lies, and approximately 1.4
miles in length, north and south (Tr. 10114-10116). This is
a flat expanse of floating and marshy vegetation, bisected
by the Pow Wow River (Tr. 8557-8562; Applicants’ Ex. 15).
Across this expanse of marsh, there is an unobstructed view
until the forest edge begins (Tr. 10114-10121). The only
man-made structures visible are a few earth-colored duck
blinds used by frequent duck hunters in season (Tr. 10117).
No artificial structures are visible above the top of the sur-
rounding trees, which are roughly 70 feet high (Tr. 10118,
10123).

129. The Society for the Protection of New Hampshire
Forests is presently developing a series of nature trails and
guided tours on its land (SPNHF Ex. 4, Part II), over
which the lines will cross. The area is used by campers and
canoeists and occasional youth groups (Tr. 8026, 8559,
8564-5, 9636-9638, SPNHF Ex. 4, pp. 6-7). Except during
the hunting season, it is a relatively uncrowded and peace-
ful area. As the population and economic development of
this region increases, the recreational value of this rela-
tively pristine area will increase.

130. The Applicants’ proposed transmission corridor
would cross the Pow Wow River marsh about midpoint
along its north-south length at one of its widest points
(Applicants’ Ex. 15, Tr. 8512, 8513). The crossing would

27

be effected using two approximately 200-foot high steel lat-
tice-work towers. The towers and the related transmission
lines would be visible from most vantage points along the
edge of the marsh as well as from the Pow Wow River.”

131. The Staff’s proposed minimum circumference dogleg
would pass through the surrounding forest and across scat:
tered gravel pits, skirting the edge of the Natural Area (Tr.
10125, 10118-10127, 8239-8241). The supporting structures
would be wooden H-frames (with the exception of the steel
tubular shaft angle structures) which would blend in with
the forest.” These structures would be approximately 75
feet high and would not be visible above the tops of adjacent
trees (Tr. 8134, 10122-10123, 10125). The dogleg would not
present any wide open vistas to visitors to the Pow Wow
River—Cedar Swamp Natural Area (Tr. 10125).

132. Potential adverse effects from the Applicants’ pro-
posed construction methods can be alleviated with the
Staff’s minimum circumference dogleg, as the land on both
sides of the river at the dogleg crossing is dry, forested
land (Tr. 10121-10122). The cleared right-of-way the dog-
leg would pass through should provide sufficient room for
the construction of berms or ditches to prevent construction
runoff from reaching the river.”

133. There is a residual possibility that the Applicants’
proposed construction methods may prove infeasible, re-
quiring the placement of transmission structures in the

24 SPNHF Ex. 2, pp. 8-10. It is noted also that the span between
the towers is about 2,275 feet and the lines would be about 50 feet
above the marsh at their lowest point.

2° ER, p. 10.91, Tr. 8140, Tubular steel poles are also more
aesthetically pleasing than steel lattice towers. Tr. 9307.

26 The right-of-way will be 170 feet wide. ER, Amendment #1,
p. 3.9-1. However, it is doubtful that crossing the Pow Wow River
using wooden H-frame structures will give rise to the need for any
dewatering near the river’s edge, as H-frame structures require no
foundation. Tr. 9299, 9340, 9214-5, 9121-2.

D8

marsh itself (Tr. 9133-9137) and or the movement of heavy
equipment into this natural area.

134. The presence of the lattice-work towers and associ-
ated transmission lines proposed by Applicants could cause
significant numbers of the migratory waterfowl who use the
Pow Wow River marsh as a feeding area and flight lane to
avoid this natural area (Tr. 9758-9762, 9766-9767). This
avoidance behavior is based on visual cues and can cause
birds to fly off laterally from the disturbed area (Tr. 9759-
9762, 10134-10135), the result being a loss in suitable habi-
tat for migratory waterfowl and thus a proportionate re-
duction in population of the affected species (Tr. 9758-9759,

9766-9767, 10133-10134). This impact could be particularly

significant in southern New Hampshire where river marsh
habitat is rare.

135. Use of the Staff’s proposed dogleg would require the
cutting of some cedar (Tr. 9581-83, 9783, 9785); the in-
creased economic cost, depending upon the dogleg chosen,
would range between $400,000 and $1,300,000 (Tr. 8933-39).
A through route for access by people and off road vehicles
such as snowmobiles would result (Tr. 8941). Herbicides
would have to be used on the right-of-way (Tr. 9022, 9034-
35). The net benefit for the dogleg is that it would remove
a visual insult from Cedar Swamp (Tr. 8945-46, 9464-9803).

136. Turning to the Seabrook-Newington line, Forests
advocates a route which would avoid Packer Bog altogether
by having the line jog to the north and west prior to reach-
ing Packer Bog to join the existing 115 KV Scobie-Newing-
ton corridor and following that corridor into Newington
(Forests Ex. 8, p. 4, and Attachment Nos. 4,5; Forests Ex.
3, pp. Al-A2). Adoption of such a route would increase
visibility (Tr. 8916-19, 9053-54) in the Town of Greenland,
New Hampshire. Assuming parallel construction is used,
the cost of Forests’ route may be cheaper overall than the
NHPUC or PSCO routes (Tr. 9168-75).

~~ NETL GAT PANE BR RTE

een ee

39

137. Based on the foregoing, the Board finds that Appli-
cants’ proposed routes, including that route directly
througi. Packer Bog, are acceptable with the exception that,
in the Pow Wow River-Cedar Swamp area the Staff’s mini-
mum circumference dogleg should be followed.

[3 NRC 932-935]
I. NEPA Responsibilities

In accord with the requirements of 10 CFR 51 and with
prior rulings of the Commission and the Appeal Board, we
have fully considered and made findings on the broad issue
of need for power and its sub-issues. Nevertheless, we wish
to point out certain problems the Board finds with the
nature of the issue and the difficulties that it imposes on
parties and Licensing Boards.

First of all we suggest that the question of need, or lack
thereof, for a specific power plant is, or should be, merely
one small facet of an overall policy in regard to energy
needs, resources, and considered allocation of resources to
their best uses. There being no official national policy, or
regional policies, with respect to energy and allocation of
resources, the decisions of licensing boards in individual
cases have, it seems to us, the effect of setting energy policy
to a substantial degree. The question in our view is whether
an individual licensing proceeding is the proper forum in
which to decide an issue which is really national in scope.

In this connection we note with interest the following re-
marks of the Licensing Board in the Nine Mile Point 2 pro-
ceeding (Niagara Mohawk Power Corporation, RAI-74-6,
AKC 7, 1074-75, 1974) :

In view of the complex issues involving the need for
power and energy conservation, it is warranted to com-
ment on the ramifications of the application of NEPA in
these areas. Section 102(2)(C) of NEPA provides that

30

a federal agency shall prepare a detailed statement of
“alternatives to the proposed action” and Section
102(2)(D) states that federal agencies shall “study, de-
velop, and describe appropriate alternatives to recom-
mended course of action in any proposal which involves
unresolved conflicts concerning alternative uses of avail-
able resources.” In addition, Section 102 of NEPA has
been interpreted as requiring the federal agency to weigh
the economic and environmental costs against the eco-
nomic and the environmental benefits of the proposed
action in determining whether to go forward with the
action. Calvert Cliffs Coordinating Comm. v. AEC, 449
F, 2d 1109 (D.C. Cir. 1971) This is the so-called cost-
benefit analysis.

The need-for-power review in impact statements ap-
parently became a general practice because meeting the
rising demand for power could be used as a dominant
factor in the cost-benefit analysis. The difficulty with this
reasoning is that this benefit does not relate to the need
for power from the specific plant but relates to the need
for power on the company’s system. In other words,
establishment of a need for power on the system does not
dictate that a particular type plant be used to meet the
need. Moreover, if the utility fails to establish a need for
power on its system, then the logical conclusion of the
need-for-power rationale is that the construction permit
should be denied. This, however, ignores the fact that
there may be other valid reasons for construction, such
as generating costs, availability of various fuels and con-
servation of versatile resources.

In light of the above, a question can be raised of
whether it is appropriate for the Agency to consider the
need for power on a utility’s system in an individual
licensing proceeding. In this connecticn, determinations of
the need for power and need for the plant could be viewed
as matters which should be left to the utility’s manage-

Pe TR APT I Re BO ROR ROE

Lo Agee ereremere

aac te ee eS

31

ment, which must exercise its business judgment to dis-
charge its obligation to provide reliable electrical service.
It might be proper if there was a national or regional
energy policy, to determine in a licensing proceeding if a
utility is complying with such policy. However, the Board
does not know of any energy policy on these matterc, and
it does not seem appropriate for licensing boards, in rui-
ing on permits for construction and operation of indivi-
dual plants, to set energy policy on a case-by-case basis.

If determination of the need for power is a business
decision, then, in the Board’s opinion, it should not be a
factor in the Agency’s NEPA considerations and is in-
appropriate as an issue in licensing proceedings. This,
of course, would not be in line with accepted practice in
licensing proceedings and would be contrary to the hold-
ing in Vermont Yankee Nuclear Power Corporation
(Vermont Yankee Nuclear Power Station), ALAB-179,
RAI-74-2, 159, 175 (February 28, 1974), where the Atomic
Safety and Licensing Appeal Board explicitly ruled:

At the outset, inquiry must be made into whether there
exists a genuine need for the electricity to be produced.
This inquiry involves not only analysis of existing gen-
erating capacity and of projections of expected growth,
but also consideration of the possibility that measures
to curtail consumption will be initiated.

The Board suggests that review and possible revision
of the agency’s present position on inclusion of the need-
for-power issue in Licensing proceedings should be seri-
ously considered. This Board does not have the option
here to change that position as it is bound by the Appeal
Board’s Vermont Yankee ruling.

The use of an alternative basis for justifying construc-
tion of a nuclear plant was recognized by the Appeal
Board when it further stated in Vermont Yankee:

a2

At the same time, however, cognizance can be taken of
the effect which a shortage of fossil fuel, or a need to
divert that fuel to other uses, might have upon demand
for non-fossil fuel, or a need to divert that fuel to other
uses, might have upon demand for non-fossil fueled
generating sources. [/d. ]

In consideration of the remarks above, we distinguish
between determination of the broad “need for power” issue
and two distinct categories of “alternatives” to the pro-
posed action, (1) “alternative energy sources” and (2) al-
ternative sites and other alternative design measures with
respect to environmental impact of the plant. The first
category clearly is closely related to the need for power
issue in that certain energy sources such as solar power or
other emerging technologies might in some circumstances
be found capable, if provided, of supplying at least a por-
tion of the power for which the proposed plant is intended.
But, short of governmental action beyond the Board’s
power, if a Board should decide that such alternative
sources could supply sufficient power that the proposed
plant need not be built, it has no power to assure that the
alternative sources will indeed be made available. In such
a case, the Board would be compelled to make a business
and economic judgment that the alternate sources will ap-
pear, a judgment which might best be left to other entities.
In other words, is a licensing proceeding the proper forum
for business judgment or determination of energy policy?
We respectfully suggest that it is not.

As for the second category, it seems clearly intended to
provide a mechanism whereby the environmental impact of a
proposed plant can be evaluated and appropriate measures
to minimize the impact can be considered. Consideration of
such matters in a licensing proceeding is in our opinion
proper and consistent with the spirit and intent of NEPA.

In view of the foregoing, it may be useful to consider
whether a “major federal action,” for which NEPA requires

33

detailed environmental statements, might for federally man-
aged and/or financed projects be treated differently than
federal licensing actions.

For a federally managed or financed project more or less
complete control is in the hands of the government. After
full environmental review and evaluation, the government
ean decide on and implement such measures, including any
alternatives of either category, as it deems appropriate
and consistent with the overall cost-benefit balance of the
project.

In some contrast, a licensing proceeding involves environ-
mental review and evaluation of a project proposed and
financed by private persons, and which in addition to eco-
nomic and business constraints also is subject to various
forms of regulatory control by other federal, state, and
local bodies. In deciding on need for power and/or alterna-
tive energy sources, a Licensing Board inevitably would be
deciding some points over which other bodies have control
and may be in contradiction to their policies or procedures.
Of course, this is not so for issues which the Board is re-
quired to address and rule upon under the Atomic Energy
Act.

In short, it appears that a Licensing Board has the power
to deny a license, but not to order alternatives such as other
modes of generation or modes of conservation. In other
words, a Board’s power appears to be essentially a negative
power insofar as the issues under discussion are concerned.
This would appear to raise the question, is it, therefore,
useful to go through the exercise, which often is lengthy,
tedious, complex, and expensive, inerely to affirm an other-
wise licensable plant or to offer in denial conclusions that
have no effect other than to veto a plant?*’

47 The futility of the issues discussed here in a licensing proceed-
ing for an individual plant is highlighted by the fact that a utility
ean build a different type plant if its applicaton for a nuclear
facility is denied.

34

In raising the foregoing questions this Board is aware of
and sympathetic to the difficulties of all agencies in the
responsible interpretation and implementation of NEPA.
We suggest no subversion whatsoever of the spirit and
intent of NEPA. Our sole objective is to stimulate thought-
ful consideration of the subject by those in better position
to take such action as seems appropriate.

In regard to transmission lines, the Applicants, although
acknowledging the constraints of legal precedent upon the
Board, urge the Board nonetheless to rule that it is without
authority to order the Applicants to adopt any specific
routes for transmission lines and to further rule that the
Board’s authority is limited to a consideration of the en-
vironmental and economic costs of the lines proposed by
the Applicants as part of the overall cost-benefit balance in
connection with the facility as a whole (Applicants’ Pro-
posed Finding V.X).

We reject this Proposed Finding and base our ruling on
the decision of the Atomic Safety and Licensing Appeal
Board in Detroit Edison Company, (Greenwood Energy
Center, Units 2 amd 3), Dkt. Nos. 50-452, 50-453, ALAB-247,
RAI-74-12, 936, December 20, 1974).

[3 NRC 937]
VI. ORDER

On the basis of the Board’s findings and conclusions in
this Initial Decision, and pursuant to the Atomic Energy
Act of 1954, as amended, and the Commission’s Rules and
Regulations, it is ORDERED:

That the Director of Nuclear Reactor Regulation is
authorized to issue construction permits in appropriate
form to the Applicants herein to construct Seabrook Station
Units 1 and 2.

OF Ome ee ee

That such permits shall contain the following conditions
for the protection of the environment:

d. The Applicants shall alter the route of the Seabrook-
Newington transmission line in the Packer Bog area
so as to traverse the Bog, as shown on Applicants’
Exhibit 18;

e. The Applicants shall alter the route of the Seabrook-
Scobie transmission line in the Pow Wow-Cedar
Swamp Natural Area so as to conform to the Staff’s
minimum circumference dogleg, which is formed by a
straight extension northward of Applicants’ B dogleg
(PSCO’s alternative B dogleg, Applicants’ Ex. 15 and
Figure 4.2 of the FES) until it intersects the Staff’s
FES dogleg (NRC proposed route, Applicants’ Ex.
15), and on the west of Applicants’ B dogleg, by ex-
tending that west segment straight on toward the
north edge, until it intersects the Staff’s FES dogleg;

[3 NRC 940-941]
[DR. SALO DISSENTING]

INTRODUCTION

My opinion is based on a result of a lack of complete
agreement with the majority on each of the above issues and
on an overall cumulative judgment based on the following:

5. The direct route of the transmission lines from Sea-
brook to the Scobie Pond substation with its high en-
vironmental impact should be aveided. Although the
doglegs proposed by the Staff** and “Forests” lessen

*° The so-called minimum circumference dogleg.

50 Forests proposes as a last alternative a dogleg of greater (maxi-
mum) circumference.

36

the environmental impact, it (the impact) can be fur-
ther reduced by utilizing the “Northern Route.”** The
claims of the Applicants that electrical stability is a
major problem can, in my opinion, be discounted con-
siderably ; however, if the problem of stability cannot
be resolved, then I would recommend the maximum
circumference dogleg. The entire issue may be re-
solved by further consideration of alternate sites.

** The Seabrook-Newington corridors with the so-called Barton
Hill jog.

ee ee ne ce

37

UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING APPEAL BOARD
Auan 8. RosentHau, Chairman

Dr. Joun H. Buck
MicnHaet C. Farrar

IN THE MATTER OF

PUBLIC SERVICE COMPANY | Docker Nos. 50-443
OF NEW HAMPSHIRE, er at. 50-444

(SeaBrook Station, UNiTs 1 AND 2)

Messrs. AntHony Z. Roisman and Davin S. FLeIscHaker,
Washington, D. C. (with whom Ms. Karin P. SHExpon,
Washington, D. C., was on the briefs), for the intervenor,
New England Coalition on Nuclear Pollution.

Mr. Ropert A. Backus, Manchester, New Hampshire, for
the intervenors, Seacoast Anti-Pollution League, the Aud-
ubon Society of New Hampshire, and the Society for the
Protection of New Hampshire Forests.

Mr. Donatp W. Srever, Jr., Assistant Attorney General of
New Hampshire, Concord, New Hampshire, for David H.
Souter, Attorney General of New Hampshire.

Ms. Exiyn R. Weiss, Assistant Attorney General of Massa-
chusetts, Boston, Massachusetts, for the Commonwealth
of Massachusetts.

Mr. Norman C. Ross, Brookline, Massachusetts, filed a brief
for the intervenor, Donald B. Ross.

Mr. THomas G. Dicnan, Jr., Boston, Massachusetts, (with
whom Mr. Joun A. RitsHer, Ms. Eveanor D. AcHEson,
and Mr. R. K. Gap, III were on the briefs), for the appli-
cants, Public Service Company of New Hampshire, e¢ al.

Messrs. MicuaeL W. Grarney and Ricuarp C. Browne
(with whom Mr. James M. Curcnuin, IV and Ms. Marcta
E. Muwxey were on the briefs), for the Nuclear Regula-
tory Commission staff.

38

DECISION

JULY 26, 1977
(ALAB422)

Opinion of the Board:

[6 NRC 82-90]

VI.
TRANSMISSION LINES

One of the environmental issues to which the Licensing
Board devoted considerable attention involved the location
of the transmission lines needed to serve the facility. Ap-
proximately three weeks of hearings were devoted to that
issue. The Society for the Protection of New Hampshire
Forests contended that resort to the routes proposed by
the applicants would cause unreasonable environmental deg-
radation, and suggested several alternate routes which it
deemed preferable. In the initial decision, the Board con-
sidered many of these alternatives as well as others offered
by the staff (or brought forth by the applicants at the staff’s
request). The conclusions it reached are challenged by the
Forest Society and the applicants.

As deve]sped in detail in the initial decision (3 NRC at
885-90), three different lines were proposed to connect the
Seabrook site to the 345 KV New England transmission
grid. The Seabrook-Scobie Pond line would run generally
westward from the facility, terminating at the Scobie Pond
substation; the Seabrook-Newington line generally north;
and the Seabrook-Tewksbury line generally to the southwest
across the Massachusetts border to the Tewksbury substa-
tion.

The principal focus below was on particular segments of
the Seabrook-Scobie Pond and Seabrook-Newington lines.
The first of these lines was to cross the Pow Wow River-
Cedar Swamp environs but the Licensing Board modified

39

the proposed route to follow a “minimum circumference
dogleg”, which was a variant of a route suggested by the
staff. The Seabrook-Newington line was to traverse an
area known as Packer Bog and the Board found this route
to be acceptable.

The applicants take exception to the Board’s alteration
of the route for the Seabrook-Scobie Pond line. In addi-
tion, they insist that the Board should not have directed
them to use the route which they proposed for the Sea-
brook-Newington line. The Forest Society seeks a differ-
ent route for both lines. We find that the Licensing Board
properly balanced the various considerations bearing upon
transmission-line routing and that the conclusions it
reached should be upheld.

A. The applicants first argue that the Licensing Board
was without legal authority to order any change in the
transmission routes which they had selected. They recog-
nize our previous holding that boards do indeed have such
authority. Detroit Edison Co. (Greenwood Energy Center,
Units 2 and 3), ALAB-247, 8 AEC 936 (1974). But they
claim both that Greenwood should be overruled and that it
does not govern this case.

The first of these claims has been now laid to rest by the
Commission’s recent decision in Kansas Gas and Electric
Co. (Wolf Creek Nuclear Generating Station, Unit No. 1),
CLI-77-1, 5 NRC 1 (January 12, 1977). There, the Com-
mission affirmed our holding that the environmental effects
of an offsite access road and a rail spur are within the
NRC’s regulatory jurisdiction. In doing so, it analogized
the regulation of off-site access roads and railroads to that
of off-site transmission lines and explicitly approved the
reasoning which we earlier had enunciated in Greenwood.
Id. at 7-8. And it emphasized that NRC authority to review
such off-site impacts goes beyond merely factoring them
into a final cost-benefit balance (as the applicants there had
contended) and includes as wel! the authority “where neces-

+0)

sary [to] impose license conditions to minimize those im-
pacts”. Jd. at 8. That ruling requires rejection of the
similar argument tendered by the applicants here.

In Greenwood, we left open the question “[w]hether the
Commission may impose license conditions compliance with
which would violate regulations of other state and local
agencies * * *”. 8 AEC at 946, n. 20. The applicants’
alternative theory is that here (unlike in Greenwood) the
Licensing Board’s transmission line conditions do run afoul
of state regulation in the form of certain rulings of the New
Hampshire Public Utilities Commission and the New Hamp-
shire Bulk Power Supply Facility Site Evaluation Commit-
tee.

We have examined the determinations of those agencies
upon which the applicants rely. In our view, they do not,
as the applicants would have it, constitute a conclusive di-
rection th: the transmission lines follow certain routes and
none other. To the contrary, the Site Evaluation Com-
mittee confined itself to findings that “the site and facility
of the proposed nuclear project at Seabrook, New Hamp-
shire and its associated transmission lines will not unduly
interfere with the orderly development of the region [and]
will not have an unreasonable adverse effect on esthetics,
historic sites, air and water quality, the natural environ-
ment and the public health and safety”. Minutes of Meet-
ing of Site Evaluation Committee, July 27, 1973, at p. 3.
Of greater significance, in authorizing the placement of the
transmission lines along the routes proposed by the appli-
cants to it, the Public Service Commission made it perfectly
clear that the applicants were free later to seek approval of
a different routing. Certificate of Site and Facility, Com-
mission Report & Order No. 11,267, dated January 29, 1974,
at pp. 9-10. In short, as matters now stand, it cannot be
said that the applicants are confronted with an unalterable
State demand that the transmission lines be placed in any
particular location.

wees mee er

41

This being so, the question reserved in Greenwood is not
here presented and this need not be reached. Our Green-
wood holding, as approved by the Commission in Wolf
Creek, is fully applicable and confirms that the Licensing
Board has legal authority to take the action which it took.
We turn now to the question whether the Board reached an
appropriate conclusion in exercising that authority.

B. The Pow Wow River-Cedar Swamp area has been
portrayed in such terms as “unique”, “unusual”, “outstand-
ing”, “unspoiled”, “peaceful”, a “recognized scenic area”
and “of regional significance”.** Our examination of the
record, supplemented by the tour which we took in the
company of representatives of both the Forest Society and
the applicants, convinces us that the area is one worthy of

protection.

As described by the Licensing Board, what is involved
is a natural area of about 1000 acres, recognized as signif-
icant by several regional and local governmental agencies.
Approximately 10-15% of it is under the protective owner-
ship of the Forest Society. Through its center flows the
Pow Wow River, surrounded on both sides by an extensive
freshwater marshland complex. The area includes rela-
tively dense or pure stands of Atlantic White Cedar trees,
a major portion of which is located on the Forest Society
property. Across the marsh one can obtain an unobstructed
view up to the forest edge, with no man-made structures
save “a few earth-colored duck blinds used by frequent duck
hunters in season”. No artificial structures are visible above
the trees. 3 NRC at 888-89.

The FES noted (§ 3.8.5) that the area “is comprised of a
mix of river marsh abundant with submergent and emer-
gent vegetation; white cedar, located on drained deposits;
and upland hardwoods on adjacent higher grounds, pre-

54 Forest Exh. 1, pp. 2, 4; Forest Exh. 2, p. 3; FES, § 3.8.5, 4.1.2;
3 NRC at 888-89.

42

senting a diverse environment which heretofore has not
been subjected to any substantial development”. Some of
the cedar trees are over 100 years old (Tr. 8187). More-
over, as the Board observed, the extensive river-marsh com-
plex is “very uncommon in southeastern New Hampshire” ;
and the Atlantic White Cedar species, which is found only
in the Atlantic Coastal regions of the United States, is
“becoming increasingly scarce as its available habitat is re-
duced by economic development”. 3 NRC at 888.

The area is used for recreational purposes by hunters,
campers, canoeists and occasional youth groups (Tr. 8026,
8144-45, 8227-28, 8245-46, 8308, 8559, 8564-65, 9395, 9636-38).
The Forest Society is developing nature trails and survey-
ing and marking the trees on its property (Forests Exh. 4;
Tr. 8230, 8243). It plans to use the area for educational pur-
poses, scientific study, and “as an area of open snace and
passive recreation” (Tr. 8220). The Society conducts about
10 field trips per year for groups of up to approximately
30 persons (Tr. 9395). The Board noted, however, that

Except during the hunting season, it is a relatively un-
crowded and peaceful area. As the population and eco-
nomic development of this region increases, the recrea-
tional value of this relatively pristine area will increase.

3 NRC at 889.

We have described the Pow Wow River-Cedar Swamp
area in some detail in order to place in context the issues
concerning that area which we must resolve. The applicants
wish to route the Seabrook-Scobie Pond line directly across
one of the widest sections of the marsh, about midpoint
along its north-south length, using two approximately 200-
foot steel lattice-work towers (3 NRC at 889). The Board
found that the towers and lines would be visible from most
vantage points along the edge of the marsh as well as from
the Pow Wow River (ibid.) and, in essence, agreed with the
staff’s conclusion that they would constitute “a major insult
to a recognized scenic area” (id. at 890; FES, § 4.1.2). It

43

also found that the towers and lines across the marsh might
have a significant adverse effect on migratory waterfowl.
Further, it expressed reservations respecting the feasibility
of the applicants’ proposed construction methods designed
to avoid the introduction into the swamp of either the tower
structures themselves or the vehicles or equipment utilized
in construction (see ER, § 4.2.1). If not feasible, according
to the Board, the result might be a “require[ment for] the
placement of transmission structures in the marsh itself
* * * and/or the movement of heavy equipment into this
natural area”. 3 NRC at 890, citations omitted.

The Board therefore ordered the applicants to route the
Seabrook-Scobie Pond line over an alternative route: a
minimum-cireumference dogleg skirting the edge of the
natural area. Wooden H-frame towers, designed to blend
with the forest, are to be used. They are to be approxi-
mately 75 feet high, not visible above the top of the adjacent
trees. Potential construction impacts would be alleviated.
And, significantly, “(t]he dogleg [route] would not present
any wide open vistas to visitors to the Pow Wow River-
Cedar Swamp Natural Area”. Id. at 889.

The applicants advance several reasons why they should
not be required to route their line on the dogleg. Foremost
is the added cost — about $493,000 if their estimate is ac-
cepted (cf. Tr. 8934 with Tr. 8938-39), substantially less if
the staff’s analyses (using applicants’ own data) are ac-
cepted (Tr. 8883-91, 9145-46; Staff’s Proposed Modifica-
tions of Applicants’ Proposed Findings of Fact and Con-
clusions of Law, dated December 18, 1975, at pp. 26-28).
Also mentioned are the considerations that some cedar trees
might have to be cut on the dogleg; that a route for off-road
vehicles would have to be established; that herbicides would
have to be used; and that there would be a visual impact
on as many as three homes —effects which assertedly
would not occur if the route straight across the marsh were
utilized. Finally, the dogleg is described as producing some

of the same effects — for example, a visual insult — as the
proposed route, albeit to a somewhat lesser extent.

For its part, although regarding the minimum circum-
ferential dogleg route as more acceptable than the one advo-
cated by the applicants, the Forest Society would have us
adopt an alternative route which would avoid the Pow Wow
River-Cedar Swamp area altogether or, if not that, at least
use a larger dogleg. Its preferred route, running to the
north and west of the approved route and using existing
transmission corridors for about 82% of its length, was en-
dorsed by Dr. Salo, the dissenting member of the Licensing
Board. It was opposed by the applicants because its addi-
tional length of 9 miles assertedly would cause electrical
stability problems. Dr. Salo thought those problems could
be “discounted considerably”; if they nevertheless proved
unresolvable, the Forest Society’s larger dogleg would in his
view be the best choice. 3 NRC at 940-41. Use of that dog-
leg would cost about $1,000,000 more than the applicants’
proposal and some $500,000 more than resort to the mini-
mum circumference dogleg (Tr. 8933-39; Forests Exh. 2,
Att. C).

In examining transmission line routing controversies, it
must be borne in mind that no potential route is free of all
impacts. Further, what to one person may be an acceptable
impact may in the eyes of another amount to environmental
degradation of enormous dimensions. As a consequence, in-
frequently if ever will there be universal agreement regard-
ing what particular route is preferable. This consideration,
does not, however, affect this Commission’s responsibility to
pass judgment on the various alternatives to the end that
the environmental aftermath of licensing may be minimized
“to the extent reasonably practicable”. Greenwood, ALAB-
247, supra, 8 AEC at 944, and cases there cited. The dis-
charge of this responsibility necessitates the making of as
objective an appraisal as is possible of the nature and ex-
tent of the environmental implications of each alternative

45

route and a weighing of the results of that appraisal against
the other factors (economic and technical) which also must
be taken into account. Here, this process leads us to con-
clude that there is no reason to disturb the Licensing Board
choice of the minimum circumference dogleg.

Central to our rejection of the applicants’ belief that the
line should be allowed to cross the middle of the Pow Wow
River-Cedar Swamp area is the special character of that
area. It may well be that white cedar trees exist elsewhere,
and that there are other marshes or swamps in New Hamp-
shire. What makes this area “unique” is that it is the only
one under protective ownership where pure stands of white
cedar trees are combined with the “river marsh and the bog,
the cedar swamp itself” (Tr. 8229, 9399, 9455-57). Beyond
doubt, the presence of two 200 foot towers (Tr. 8505) and
associated wires in the midst of the area would occasion a
visual intrusion of considerable magnitude. Contrary to the
belief of the applicants, by no means can that intrusion be
equated to the visual impact that would attend upon the
routing of the line on the minimum circumference dogleg —
a routing which, once again, would not bring either the
towers or the wires into the line of sight of most visitors to
the area. True, at least one — and perhaps three — private
homes would be brought within the shadow of the line. It
would appear, however, that this relatively limited impact
could be readily reduced (even though not eliminated en-
tirely) by a screen of trees of some other form of vegetation
(Tr. 10127).

The other ingredients of the applicants’ attack upon the
Licensing Board’s result are no more persuasive. The cost
differential — at most slightly less than $500,000 — is not
insignificant but, at the same time, is not to our mind suffi-

55 Although we are not placing a specific condition on the con-
struction permits in this regard, we will expect the applicants to
take all feasible measures to implement our suggestion.

46

ciently great to overcome the desirability of protecting the
sanctity of the area. There is no indication in the record
that the number of cedar trees which might have to be cut
is appreciable; beyond that, what would be lost is a scatter-
ing of cedars interspersed among much more abundant
hardwood trees rather than the stands of pure cedar which
provide the area with its unique character (Tr. 10104,
10141). All of the other environmental impacts of routing
on the minimum circumference dogleg appear to us to be
de minimis.

Moving on to the Forest Society’s suggested alternate
routes, the record does not establish that the larger dogleg
would be sufficiently environmentally superior to the mini-
mum circumference dogleg to justify the additional $500,000
cost. The principal comparative advantage assigned to the
former was that it would result in a greater “buffer zone”
between the natural area and outside development (Tr.
9411-12, 9457-58, 10151-52). But we find nothing in the rec-
ord to suggest that, if located on the minimum circumfer-
ence dogleg, the line would not iself provide a buffer ade-
quate to protect against possible harmful encroachment
upon the Cedar Swamp ecosystem.

The “northern route” preferred by the Forest Society
does offer at least one environmental advantage in that, al-
though several miles longer than any of the other proposed
routes, it utilizes existing transmission corridors for over
80% of its length (Forests Exh. 3, p. A2). We are con-
fronted, however, with the applicants’ insistence that the
employment of the northern route would occasion a stability
problem —i.¢., an inability in the event of an electrical
fault to maintain synchronization between the various gen-
erating stations supplying power to the grid to which the
particular transmission line is connected (FES, p. A-19).
The uncontroverted evidence is to that effect (Tr. 8479, 8481,
8924-25 as corrected on 8957, 9098-9101). What is less clear
is whether, and at precisely what additional cost, this prob-

47

lem might be overcome. It appears from the record, how-
ever, that in all events the northern route would be consider-
ably more expensive.

Leaving aside the cost which would be involved in rectify-
ing the stability problem, the appreciably greater length of
the route would necessitate a much larger number of towers.
On the average, there would be 10.5 towers per mile (Tr.
9297). Wooden H-frame towers cost $6,700 each (Tr. 8805) ;
every time the line makes as little as a 2 degree change in
direction, the applicants’ practice is to use a steel tower
which costs $45,000 (Tr. 8644-48, 8805). Moreover, there
would be some expense for the additional wire. In this con-
nection the cost to the applicants of constructing a line
between Newington and Deerfield, exclusive of right-of-way
expense, ran to $150,000 per mile (Tr. 8806). Here, the fact
that the northern route would parallel an existing line for
much of its length does not mean that little right-of-way
acquisition would be necessary. To the contrary, between
85 and 125 feet of additional right-of-way width would have
to be obtained for the portion of the northern route which
paralleled an existing line (Tr. 8633, 9256). Otherwise, ap-
proximately 170 feet would be needed (Tr. 8600).

Still further, even though we do not know the precise
cost of overcoming the stability problem (assuming that it
is possible to do so), the evidence indicates that one step
that would have to be taken would be additional insulation
and H-frame bracing along the entire 38 miles of the north-
ern route. This would add $10,000 per mile to the cost of
constructing the line (Tr. 9318-20).

What the matter thus comes down to is whether the en-
vironmental benefits attendant upon resort to the northern
route would outweigh the increased cost and the possibly
irremediable stability problem which such resort would en-
tail. We conclude not. For one thing, as just seen, even
where the northern route paralleled existing lines additional
land would have to be taken to broaden the corridor. Sec-

48

ondly, use of the minimum circumference dogleg will pro-
vide a sufficient measure of protection to the sanctity of the
Pow Wow River-Cedar Swamp area that it would not ap-
pear warranted in the interests of still further protection to
incur both markedly greater expense and the risk of signifi-
cant technical difficulties.

C. Packer Bog, through which the Seabrook-Newington
line (as approved by the Licensing Board) is to pass, is
located in large part in the Town of Greenland and to a
lesser extent in the Town of Portsmouth, New Hampshire
(Tr. 8043, 8046). In many respects it is similar to Cedar
Swamp: viz., a swamp area in which are interspersed some
white cedar trees. The cedar trees are found in two con-
centrations, which taper off into the swamp in which are
found mostly deciduous trees (Tr. 8046-47). One of these
concentrations is a rather large pure stand of cedar (Tr.
10145).

The Chairman of the Portsmouth Conservation Commis-
sion testified under the sponsorship of the Forest Society.
She stressed the “scientific interest [in] and educational
value” of preserving the swamp area with its white cedar
trees within the town limits of Portsmouth and noted that
the Conservation Commission had acquired certain land
areas (which included a small area of 2.1 acres in Packer
Bog) to foster “the preservation of open space in its natural
condition” (Forests Exh. 8, p. 3; attachment 1).

The applicants, following discussions with local groups
(including the Portsmouth Conservation Commission),
originally sought to avoid Packer Bog by skirting the south-
easterly edge of that area, and it received permission from
the New Hampshire Site Evaluation Committee to do so.
But such a route would have traversed the land on which the
major pure stand of white cedar lies, possibly requiring the
removal of some of those trees (Tr. 8046-47, 8135). To ob-
viate this possibility, the applicants asked the Licensing
Board to approve an alternate route through the center of

49

the Bog which would avoid the cedar trees and also result
in construction on a higher and drier strip of land than that
encompassed by the original proposal (Tr. 9044-49, 9128-29).
The Licensing Board approved this alternate route. 3 NRC
at 890.

On appeal, the Forest Society complains of this result. It
urges that the Board should have chosen instead the route
suggested by the Conservation Commission. That route
jogs somewhat to the north and west of the approved route
and would parallel existing transmission lines for a sub-
stantial portion of its length. It would avoid the Bog and
the cedar trees altogether.

There apparently is no problem electrically or mechani-
cally with this route (Tr. 8128-30), and the applicants con-
ceded that it might cost less (albeit not by much) than
either of the alternatives they were prepared to support
(Tr. 9168-76). But use of it would require either (1) higher
towers and wires which would be highly visible in the Town
of Greenland through which the line would run (Tr. 8917,
9053) ; or (2) the acquisition of a wider right of way and a
placer ent of the towers and wires which would have a sig-
nificant visual impact upon residential properties in Green-
land (Tr 8918-19). The Licensing Board’s rejection of
the route was apparently grounded on these considerations.
3 NRC at 890.

As in the case of the Pow Wow River-Cedar Swamp area,
we must balance the benefits and detriments of the various
alternatives. Despite some similarities between the two
areas, Packer Bog lacks the unique features of Cedar
Swamp. Its cedar trees are less in number and in any
event are not likely to be disturbed by the route approved
by the Licensing Board. It has no river marsh. And it has

56 The Board failed to explain why it reached its conclusion, but
it did recite a portion of a finding proposed by the applicants con-
cerning the visibility of the line in Greenland.

50

no visual vistas comparable to those which the Pow Wow
River-Cedar Swamp area offers, since it is already bounded
on two sides by a road and a railroad track respectively.

Further, as our tour of the area confirmed, the interior
of Packer Bog is relatively inaccessible to the general pub-
lic, lacking any developed trails or paths. Indeed, one of
the reasons its preservation is sought is to avoid the effects
of human intrusion:

The creation of an access to human traffic into the heart
of the swamp forest could, furthermore, have disrupting
effects on the fragile plant community as well as on the
deer population * * *.

Forests Exh. 8, p. 4.

Beyond these factors, the environmental costs of the
Conservation Society’s route are of some consequence. In
particular, the visual impact on residences would be sig-
nificant — not just on one house (or at the most three
houses) as with the minimum circumference dogleg around
Cedar Swamp, but rather on a number of old colonial houses
(Tr. 8919, 9053). Local officials in the Town of Greenland
indicated to the applicants that they objected to such a
route (Tr. 8916-19), although the Chairman of the Ports-
mouth Conservation Commission testified that Greenland’s
Head Selectman had told her he knew of no such objection
(Tr. 9608).

All things considered, the choice between the approved
and the Conservation Society routes appears to be very
close. In our judgment, however, the environmental effect
upon the Packer Bog of use of the former is outweighed
by the effect which the latter would have upon Greenland
residents. This being so, we would not be justified in dis-
turbing the Licensing Board’s result.

dl

[6 NRC 114]
[MR. FARRAR — DISSENTING }

3. Transmission Lines. I believe the record could have
been far more thoroughly developed with respect to the
comparative economic costs of the so-called “Northern”
route and the route which the Licensing Board decreed be
followed. There is room for a clearer appreciation, for
example, of both (1) the expense involved in overcoming
the asserted electrical stability problem, and (2) the rela-
tive costs of land requisition in the two corridors (given
that the longer route could use a narrower right of way and
that land values might differ in the two areas). Although
on the present record the question is an extremely close
one, I cannot say that the additional measure of environ-
mental protection that the Northern route would afford to
the Cedar Swamp area (1.e., avoiding it entirely rather than
merely skirting it, as the dogleg would do) is worth the
additional economic cost apparently associated with that
route.

THE STATE OF NEW HAMPSHIRE
PUBLIC UTILITIES COMMISSION
Docket No. D-SF6205
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
SEABROOK NUCLEAR POWER PLANT
CERTIFICATE OF SITE AND FACILITY
COMMISSION REPORT
AND
ORDER NO. 11,267

January 29, 1974

a)
D-SF6205

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE

Application for Certificate of Site and Facility for nuclear
electric generating station at Seabrook, New Hampshire (al-
ternate, Litchfield, New Hampshire) and associated trans-
mission lines;

Application for authority to do business as an electric
public utility in the Towns of Seabrook, Danville, Hampton,
Hampton Falls, South Hampton, Exeter, Stratham, Kens-
ington, East Kingston and Kingston; and

Applications for licenses to construct and maintain elec-
tric transmission lines over and across public waters and to
construct and maintain conduits (tunnels) under and across
public waters and lands.

Appearances (general): For the Petitioner, Franklin
Hollis and Joseph S. Ransmeier; for the Public, Donald W.
Stever, Jr., Assistant Attorney General; for the Seacoast
Anti-Pollution League, John Mahar and Karen Sheldon;
for the Society for the Protection of New Hampshire For-
ests, Paul O. Bofinger and Robert A. Backus; for the United
States Environmental Protection Agency, Charles Corkin,
II; for the Conservation Commission, Peter E. Randall; for
the Audubon Society of New Hampshire, Tudor Richards;
for the North Hampton Conservation Commission, Rudi
Smith; Elizabeth Weinhold, pro se and Willard M.
Brownell, pro se. ;

REPORT

These proceedings were initiated on February 1, 1972
when Public Service Company of New Hampshire (“the

54

Company”), pursuant to RSA 162-F (Chapter 357 of the
Laws of 1971) filed an application for a certificate of site
and facility for the construction of a nuclear electric gener-
ating station at Seabrook, New Hampshire, and associated
transmission lines, with the Public Utilities Commission
(“the Commission”). Under the provisions of RSA 162-F :7
I, the Commission is required to hold a joint public hearing
with the Site Evaluation Committee (“the Committee”) and
such other State agencies as have jurisdiction over related
matters, i.e. discharge into public waters, air pollution, and
dredge and fill of public waters, within six (6) months of
the date of application upon not less than twenty-one (21)
days public notice.

On April 3, 1972, an order of notice of public hearing, to
be held on June 19, 1972 at the Winnacunnet High School
in Hampton, New Hampshire at 10:00 a.m. was issued, with
instructions for the Company to give public notice through
newspapers having general circulation in the territory in-
volved, notice to pertinent local officials and planning com-
missions by individual delivery, and to file a copy of the
application in the State Library at Concord and in four (4)
other public libraries at Portsmouth, Seabrook, Manchester
and Nashua. A certificate of compliance with the order has
been filed by the Company.

Joining the Commission and the Committee at the open-
ing hearing, some as members of the Committee, were rep-
resentatives of the following agencies, who, under the pro-
visions of various statutes, have the responsibility for
issuing permits or licenses:

1. Special Board;

2. New Hampshire Water Supply and Pollution Control
Commissicr ;

3. New Hampshire Department of Public Works and
Highways; and

4. Air Pollution Control Commission.

Thirty-two (32) days of hearings were held during the
period from June 19, 1972 to May 25, 1973. A view of the
plant site area was made on June 29, 1973. Over five thou-
sand eight hundred (5,800) pages of testimony were taken
involving some one hundred twenty (120) witnesses and
statements by individuals. Approximately two hundred
(200) exhibits were also introduced at the hearings.

The Company seeks authority to construct a nuclear gen-
erating station consisting of two (2) 1100-Megawatt units at
a site in Seabrook easterly of the Boston and Maine Rail-
road and southerly of Brown’s River on a spot known as
“The Rocks”, as shown on the Company’s Exhibit No. 39
(Appendix 1). Cooling water for the plant’s condensing unit
will be taken from, and discharged into, the Atlantic Ocean
by means of two (2) bedrock tunnels eighteen (18) feet in
diameter approximately one hundred fifty (150) feet under
the beach area, and extending approximately one mile off
shore. The general route of the tunnels is set forth in Com-
pany Exhibit No. 106, Page 12, Figure 3-1 (Appendix 2).
A later exhibit filed by the Company in connection with its
application for a license to cross under public land and
waters is attached as appendix 2A. There is no significant
change in the general location of the tunnels, merely a re-
versal in the location of the intake and discharge tunnels).
Transmission lines which are associated with the project are
rated at three hundred forty-five (345) Kilovolts. Three (3)
lines are involved — Line No. 1, seven (7) miles long, run-
ning from the Seabrook plant to the Massachusetts line;
Line No. 2, twenty (20) miles long, running from the Sea-
brook plant to the Newington plant and Line No. 3. twenty-
nine (29) miles long, running from the Seabrook plant to a
system sub-station (Seobie) in Londonderry. The routes of
these lines are set forth in Company Exhibit 53A (Appendix
3). The construction features of the lines are set forth on
Exhibits 57 (Appendix 4) and 58 (Appendix 5).

D6

Under the provisions of RSA 162-F:8 the Commission in
order to issue a certificate of site and facility must find that
the construction of the facility —

(a) Will not unduly interfere with the orderly develop-

ment of the region with due consideration having
been given to the views of municipal and regional

planning commissions and municipal legislative
bodies ;

(b) Is required to meet the present and future demand
for electric power ;

(c) Will not adversely affect system stability and reli-
ability and economic factors; and

(d) Will not have an unreasonable adverse effect on
esthetics, historic sites, air and water quality, the na-
tural environment and the public health and safety.

Prior to any action by the Commission, the Committee,
after having considered available alternatives and the en-
vironmental impact of the site or route, must find that the
site and facility [will not unduly interfere with the orderly
development of the region with due consideration having
been given to the views of municipal and regional planning
commissions and municipal legislative bodies], and [will not
have an unreasonable adverse effect on esthetics, historic
sites, air and water quality, the natural environment, and
the public health and safety], and shall send its findings to
the Commission within eighteen (18) months of the filing
of an application for a certificate of site and facility.

On July 27, 1973 the Committee, by an eight (8) to four
(4) vote, found as follows:

(1) That it has given due consideration to the views of
municipal and regional planning commissions and
municipal legislative bodies concerned with the site
and facility of the proposed nuclear project at Sea-
brook, New Hampshire and its associated transmis-
sion lines and that the site and facility of the pro-
posed nuclear project at Seabrook, New Hampshire
and its associated transmission lines will not unduly
os with the orderly development of the region;
an

a7

(2) That the site and facility of the proposed nuclear
pee yr at Seabrook, New Hampshire and its associ-
ated transmission lines will not have an unreasonable
adverse affect on esthetics, historic sites, air and
water quality, the natural environment and the pub-
lic health and safety.

The Committee’s full report is attached as Appendix 6. It
will be noted that the findings under No. 1 and No. 2 above

coincide with (a) and (d) as listed in RSA 162-F':8 I.

The Commission, being bound by these findings, now must
make definitive findings on (b) and (c), namely, that the
construction of the facility —

(b) is required to meet the present and future demand
for electric power ; and

(c) will not adversely affect system stability and reli-

ability and economic factors.

We first turn our attention to (b). The evidence pre-
sented by the Company, official reports to this Commission,
statements by both governmental and industrial organiza-
tions, and actual operating experience, give overwhelming
testimony to the need for added generating capacity to meet
the present and future demand for electric energy. His-
torically, the Company’s peak load has grown from two
hundred fifty-five (255) megawatts in 1955 to eight hundred
six (806) megawatts in 1971. The Company projected eight
hundred eighty-seven (887) megawatts for 1972 and the
actual figure on December 15, 1972 was eight hundred
seventy-five (875) megawatts. More importantly, though, a
peak of nine hundred thirty (930) megawatts was reached
twenty-four (24) days later, on January 8, 1973. Thus, fore-
casting done on a calendar year basis must be considered in
the light on the winter peak, which often occurs in January.
The Company’s projection for the years 1979 and 1981, the
years during which Seabrook 1 and 2 are scheduled to come
on line, is one thousand seven hundred forty-two (1,742)
megawatts and two thousand one hundred twelve (2,112)
megawatts, respectively.

58

In order to test the Company’s projections, an outside
agency was engaged, under the provisions of RSA 162-F':7
V, to make independent load projections. The New England
Energy Policy Staff (NEEPS) agreed to do this work and
its Executive Director, Paul H. Shore, presented testimony
on this subject through a thirteen (13) page exhibit (Site
Evaluation Committee, Exhibit No. 1). NEEPS was an
agency of the New Ingland Regional Commission, operat-
ing organizationally as a part of the staff of the New Eng-
land Governor’s Conference. It was established to serve the
general public in developing and keeping current a broad
overview of New England’s energy problems with particular
emphasis on the electric power portion of the total energy
spectrum. NICEPS worked closely with each state public
utility commission and other public and private groups and
agencies in analyzing regional energy needs and resource
potentials and in developing a long-range regional energy
policy framework within which local, state and regional
decisions may be made.

Exhibit 6 showing the Company’s bulk power supply pro-
jections is set forth below, to which has been added the
NEEPS projection, by years until 1980 and then every five
(5) years to the year 2000. It should be noted that the
Company’s projection involved its own load based on his-
torical facts projected forward, whereas the NEEPS ap-
proach was to project the New Hampshire load based on its
relationship to the New England load.

The Company is responsible for serving the bulk of New
Hampshire through its retail sales and sales to other public
utilities, which includes service to some borderline towns in
Maine and Vermont, while the New Hampshire load ex-
cludes these but includes a few New Hampshire towns whose
source of power is from sources other than Public Service
Company of New Hampshire. Thus the two loads are
theoretically not the same, but are close enough for all
practicable purposes to reflect usage trends.

NEEPS

EXHIBIT 6
Augmented by

NEEPS Projections

3
900

*Range of
Load Forecasts

860 887
960
1000 1075 1130

1

Total
Capability

1063
1143
1296
1353
1533
1684
1928
2033

Megawatts
100

PSCoNH PSCoNH

SEABROOK PROJECT
PROJECTIONS FOR BULK POWER SUPPLY, 1972-1984

303

Purchase Sales

860

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE

PSCoNH

Generation

rer

59

942
1023
1110
1200
1303
1411
1527
1652

977 1010

1140 1184 1270
1230 1304 1420
1290 1436 1590
1410 1582 1780
1460 1742 1990
1630 1918 2230

2033
2618

SSSESSESSS

SSB NN

on ee So oe ot oe te eo

SSNS CO o> oD

rt ON OD ADB 1D 1D UD
wm wD

= 2S

WD Wis

re

ot et et et i 6 OO

Daananananetsa

NANA A & & OD

sn oe oe oe oe oe

COMIN OM ONS

Sadi Seal Seed See Sell Sone, Seed? © B.S)

AAAARAAARAN

Tt et St ot

Year
2410 (1985)
3380 (1990)
4240 (1995)

5090 (2000)

2810 3512

1720 2112 2500
1840 2323 2800
1969 2555 3136

2107

2787
3065

3372

260
260
260

706
1084

1291

2341
2341

2341
1 Low estimate, 2 Present forecast, 3 High estimate

*Peak Load Forecast for December

ee
EE wie sede

BE xo sidws-aiy ss

60

The Company projects a 1.78 times increase in load from
1973 to 1979, the year the first Seabrook unit is scheduled.
NEEPS forecasts a 1.62 increase in the New Hampshire
load. Applying the lower increase to the Company’s projec-
tion would produce a reduction of one hundred fifty-nine
(159) megawatts in the Company’s forecast for 1979, an
amount equal to about one year’s growth at that time. In
such a projection involving a substantial planning and con-
struction period of several years, an underforecast would
have serious consequences; whereas an overforecast in a
continually increasing situation merely requires a little slip-
page, if, in fact, usual delays fail to materialize. In a Fed-
eral Power Commission report of “Delays of Scheduled
Operation of Electric Generating Units” dated March 7,
1973, twenty-nine (29) nuclear units totaling twenty-four
thousand two hundred eighty-three (24,283) megawatts were
shown as being delayed from one to three years. Thus, we
must conclude that the need for generating capacity exists,
that the Company’s forecast is supported by an independent
and neutral agency, and that a forecast on the high side
contains a desirable cushion.

Witnesses produced by public counsel and intervenors
attacked the Company’s projection method on the grounds
that it failed to take into consideration numerous conditions
that would affect power use. Testimony by these witnesses
unaccompanied by any positive projections of their own, can
be given little consideration over some forty-five (45) years
of actual performance by the Company in successfully pro-
jecting and matching generation capabilities to actual needs
in such a manner that over fifty-one (51) billion kilowatt-
hours have been delivered, with major service interruptions
due only to floods and hurricanes, during almost a half-
million hours of service.

Some of the opposition witnesses and those making state-
ments suggested that demands for power could be met by
Commission efforts to curtail power use through the estab-

ee eee

ee

61

lishment of rate schedules so structured as to penalize
greater use. We reject this approach as irresponsible and
invalid — irresponsibie because it ignores the basic statu-
tory authority of the Commission and invalid because our
statutory authority clearly prohibits such action. RSA

341:1 and 2 read as follows:
341:1 Service. Every public utility shall furnish such
service and facilities as shall be reasonably safe

and adequate and in all other respects just and
reasonable.

341:2 Charges. All charges made or demanded by any

ublic utility for any service rendered by it or to

e rendered in connection therewith, shall be just

and reasonable and not more than is allowed by

law or by order of the public utilities commission.

Every charge that is unjust or unreasonable, or in

excess of that allowed i law or by order of the
commission, is prohibited.

As long as the capability exists to provide a utility com-
modity, it is our judgment that our duty requires us to see
that the service rendered will meet the customers’ demands,
and will be just and reasonably priced. Within reasonable
limits, just and reasonable charges must reflect the cost of
the service provided. Arbitrary rate structures which are
not based on the cost of service provided will not result in
just and reasonable charges. The authority does not rest
with this Commission at this time to control the use of
utility resources by means of arbitrary rate structures,

During the hearing, questions were raised as to the need
of such a large plant because some of the power was to be
sent out of the State. Today, the bulk of all power gener-
ated and used in New England moves over an integrated
electrical system involving the major operating utilities.
A formal power pool has been established, known as
NEPOOL. Larger power plarts are built on a collective
basis than could be built on an individual basis, so as to
obtain economies of scale. Power is dispatched from a cen-
tral control point so as to use the most efficient plants to

62

meet the variable conditions of load. Reference to Pecti-
tioner’s Exhibit 6, reproduced above, shows that in 1979,
while the Company will be releasing five hundred eighty-five
(585) megawatts of Seabrook’s 1100-megawatt capacity to
out-of-state use, the Company will be purchasing five hun-
dred thirty-seven (537) megawatts from an out-of-state
plant(s) constructed under the same philosophy as Sea-
brook. Even after the installation of the second 1100-mega-
watt unit, the Company will be buying in 1983 an amount
equal to that to be dispensed out of state at Seabrook.

We find that the construction of the proposed facility (b)
is required to meet the present and future demand for
electric power.

We turn now to the second finding we must make, namely,
“that the construction of the plant will not adversely affect
system stability and reliability and economic factors”.

Uncontested testimony was introduced by the applicant’s
witness, Barbour, that the Seabrook plant would not ad-
versely affect the system stability and reliability. The plant
is designed in accordance with reliability criteria developed
by the Northeast Power Co-ordinating Council, an organiza-
tion made up of all major power companies in New England,
New York, Ontario and New Brunswick. Stability studies
have been conducted to determine the transmission lines
necessary to connect this plant into the existing system.
These lines are scheduled for construction as a part of the
total facility now under consideration. A review of the basic
costs involving Seabrook, and comparison with present-day
costs of fossil plants, indicates that Seabrook will have no
adverse affect on the economy. Uncontradicted evidence
produced by the applicant showed such a significantly lower
cost from a nuclear plant than from a similarly-sized fossil
fuel plant as to eliminate even considering a fossil fuel plant
unless the nuclear plant was beyond any possibility of be-
coming a reality. The cost advantages of nuclear energy

63

are set forth in the applicant’s Exhibit 25, attached as
Appendix No. 7.

Factual information as of September, 1973 indicated that
an oil price of 0.90 cents per kilowatt-hour was already a
reality for the Newington plant, scheduled to become opera-
tional in 1974. Thus, the rapid acceleration of fossil fuel
prices has already exceeded that predicted earlier for 1979.
This increase will serve to increase the favorable price
advantage of nuclear energy.

On the basis of the foregoing we find that the construc-
tion of the Seabrook facility (c) will not adversely affect
system stability and reliability and economic factors. Thus,
all findings required under 162-F':8 (a), (b), (ec) and (d)
have been fulfilled, and shall be so considered in our action
on the certificate of site and facility.

While the associated transmission lines will be authorized
along the routes set forth in Exhibit 53A, we fully realize
the possibility of refinement of these locations as field work
progresses with the actual layout of these routes. This
approval may be modified, upon request, by the Petitioner
should meaningful negotiation with responsible local autho-
rities, regional commissions, etc. result in any beneficial
route relocations.

Authority to Operate as a Public Utility in Certain Areas

Pursuant to RSA 374 :22, the Company seeks authority to
do business as an electric public utility in the Towns of Sea-
brook, Hampton, Hampton Falls, South Hampton, Danville,
Kensington, East Kingston and Kingston for the purpose
of generating and transmitting electricity. We find that the
operation proposed in these towns is necessary in the pub-
lie interest and the authority is granted.

Authority for Overhead Wire Crossing of Public Waters

Under the provisions of RSA 371:17-20, as amended by
Chapter 21, Laws of 1967, the Company seeks authority to

64

construct and maintain overhead river crossings of the 345
KV transmission lines along the routes authorized by the
Site Evaluation Committee (Exhibit 53A, Appendix 3). An
amended petition filed by the Company on September 21,
1973 setting forth the public water crossings along the
routes, as finally approved, identified the crossings as
follows:

1. The Massachusetts line will cross the Pow Wow
River at a location approximately three hundred
fifty (350) feet upstream from the New Hampshire-
Massachusetts state line, as shown in red on a print
of a portion of a U.S.G.S. map entitled “Proposed
345 KV Water Crossing Pow Wow River, South
Hampton, N. H., January, 1972” attached hereto;

2. The Scobie line will cross the Pow Wow River and
adjoining swamp in the Town of Kingston as shown
in red on a print of a portion of a U.S.G.S. map en-
titled “Proposed 345 KV Water Crossing Cedar
Swamp Area, Kingston, N. H., September, 1973”, at-
tached hereto;

3. The Newington line will cross Brown’s River and
adjoining marsh flooded at least at high tide in the
Town of Seabrook, and Hampton Falls River, Taylor
River and adjoining marsh flooded at least at high
tide in the Towns of Hampton Falls and Hampton,
all as shown in red on a print of a portion of a
U.S.G.S. map entitled “Proposed 345 KV Water
Crossings Hampton Tidal Area, Hampton-Hampton
Falls, N. H., September, 1973”, attached hereto.

Specific information as to tower locations, wire configura-
tion and clearance is not available at this time, but licenses
may be conditionally granted subject to the furnishing of
this information as soon as it is available.

Following due notice, no interested parties offered objec-
tion, and, upon investigation and consideration, this Com-
mission finds that the proposed construction is necessary
in order to meet the reasonable requirements of service to
the public, and that the licenses sought may be exercised
without substantially affecting the public rights in the

6D

waters crossed. These licenses are granted subject to the
furnishing of plan and profile drawings showing tower and
wire locations, construction design, and minimum vertical
water clearance satisfactory to the Commission.

Authority to Construct Facilities Over, Under and/or
Across State Land

A modified petition was filed by Public Service Company
of New Hampshire pursuant to RSA 371:17 for authority
to construct and maintain two tunnels serving the circulat-
ing cooling water system of its proposed Seabrook nuclear
generating station (a) under Brown’s River and tributaries
thereto, Hampton River and/or Hampton Harbor and un-
der the ocean floor of the Atlantic Ocean, all being public
waters of the State of New Hampshire, to points of intake
and discharge near the ocean floor at respective distances
offshore of more than 3,000 and more than 6,000 feet, and
(b) beneath U. S. Highway No. 1A and the State Park in
the Town of Hampton, each constituting land owned by the
State of New Hampshire; and to install at the ocean ends
of said tunnels.appropriate intake and discharge facilities.
These tunnels are in lieu of the pipes for which the original
petition was filed as a part of the Seabrook application.

The Company’s application is thus incident to its pending
petition for a certificate of site and facility for construction
of the said Seabrook generating station.

At the hearing on the amended petition held on January
16, 1974, Mr. George Hamilton of the Department of Re-
sources and Economic Development presented a letter to
the Commission from Commissioner George Gilman of that
Department requesting that the proceeding be deferred
pending a determination by the Attorney General of the
question of whether the Public Utilities Commission had
jurisdiction to consider the Company’s petition under RSA
371:17 or whether the Company should rather seek author-
ity for the placing and maintenance of the said tunnels in,

66

through and beneath state lands and public waters from the
Governor and Council. The Commission noted that the
Company’s original application for a certificate of site and
facility for the Seabrook Station had been filed on February
1, 1972 and that under the provisions of RSA 162-F, as
applicable to such application, a determination upon it was
mandated

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1738%3A2. Public record. Not legal advice.