Petition for Writ of Certiorari — New Hampshire v. Atomic Energy Commission

“FILED:

“APR 28 1969, :

sean es iw F. bane, cue

In The - FESS pace op Bees

- Supreme Court of thie United’ States. |

e

=

- April Term - 1968

.No. 1928

5 ‘State of a Hampshire, Petitioner ; = ,

: 3 we ‘ 2

: Atomic Energy Commission, and

-- United States of America, ndents

_ Vermont Yankee Nuclear Power ¢ vorporation, _

oe Intervenor |

: Petition For A Writ of Certiorari To The

‘United. States Circuit Co , of Appeals.

- For The First Circuit

——$—

'R. PETER SHAPIRO, SQ. OS Sk aes

: Cogmsel_ for the Petitioner. = = * ema ~.

: 11 South Main Strees ve Sue se ig eave

1

INDEX

INDEX

“TABLE OF AUTHORITIES.

CITATION TO OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

STATUTES INVOLVED

STATEMENT

REASONS FOR GRANTING WRIT

_ CONCLUSION

APPENDIX A

U. S. Constitution 5th, Ad

42 U. S. Code s. 2011 et seq

33 U.S.C. s. 466(h)

Executive Order 11288

APPENDIX B

A. E. C: Memorandum And Order

N. Hi. v. AEC., No.. 7148

RE REUROT Sencar anette eee

POY CEA a nc NOTA oh

°

il

TABLE.OF AUTHORITIES

Cases

PAGE

‘Brest v. Jacksonville Expressway Authority, 194 So.

2d 685 aff’d-202 So. 2d 748 (1967)

9

Power Reactor Development Co. v. International

~ Union of Electrical Workers, 376° Uz S. 396

(1961) |

8,9

Rundee I nlet: Authority v. Bascum et * 206 Va. 906,

147 SE. 2d 13i (1967)

Statutes ‘

N. H. R. S. A. Chapter 149

10 C.F.R. part 50

79 Stat. 903

28 U.S.C. s.

28 U.S.C: s:

33 U.S.C. s.

42 U.S.C. s.

42°U.S.C. s.

1254(1)

2342 (supp. )

466 et. seq.

2011 et seq.

2239

U.S. Constitution 5th Ad.

M iscellancous

31 F.R. 9261 (Ex. Ord. -#11288)

32 Fed Reg. 9334

10

In The.

Supreme Court of the United States

April Term 1969

No.

STATE OF NEW HAMPSHIRE,, Petitioner

as v. a

ATOMIC ENERGY COMMISSION, AND

UNITED STATES OF AMERICA, Respondents

VERMONT YANKEE NUCLEAR POWER

CORPORATION, Intervenor.

¢

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT —

THE STATE OF NEW HAMPSHIRE, a duly or-

ganized body politic, with offices in Concord, County of

Merrimack, State of New Hampshire, prays that a writ

of certiorari issue to review the judgment of the United

States Court of Appeals for the First Circuit, entered in

the above-entitled case on January 13, 1969, for which a

rehearing was denied on January 27, 1969.

CITATION TO OPINIONS BELOW |

The pertinent provisions of the Memorandum and Order

of the Atomic Energy Commission dated April 8, 1968 are

unreporied and is printed in Appendix B. The opinion of.

.

ISR ae Als

dnote

a. ult

pen |

The Circuit Court of Appeals for the First Circuit is un-

reported and is printed in Appendix B.

JURISDICTION

The judgment of the Circuit Court-of Appeals for the

First Circuit was entered on January 13, 1969. Rehearing

was denied on January 27, 1969. The jurisdiction of this

Court is invoked under 28 U.S.C. Section 1254 ia

QUESTIONS PRESENTED

1. Whether the U. S. Atomic Energy Commission,

when administering the provisions of Title 42, U.S.C. ss.

2011, et seq.-is required.as a matter of law to consider

evidence regarding the potential effects of thermal pollu-

tion on the environment and the ecology of the subject

_ area which may be caused by the proposed facility.

2. Whether the U. S. Atomic Energy Commission

abused its discretion in failing to consider evidence re-

garding the potential effects of thermal pollution on the

environment and the ecology of the subject area which

may be caused by the proposed facility.

3. Whether the actions of the U.S. Atomic Energy

Commission in granting a license to the Intervenor “Ver-

mont Yankee” for, the operation of a nuclear power plant

deprived the State of New Hampshire and its citizens of

their property without due process of law and the payment

of just compensation as naasiag by the U. S. Constitution,

5th Amendment.

STATUTES INVOLVED

The 5th Ameridment to the U.S. Constitution is involved

and is printed in Appendix A. Also involved is the Atomic

Energy Act of 1954, as amended 42 U.S.C. 2011, et seq.;

the Federal Water Pollution Control Act, 33 U.S.C. 466

oo

‘3

et seq.; and the Water Quality Act of 1965, 79 Stat, 903.

These statutes being too voluminous to print in full; the

pertinent sections thereof are printed in Apendix A. Also

printed in Appendix A are the pertinent sections of Ex-

ecutive Order No. 11288 (31 F.R. 9261). -

STATEMENT -

The Vermont Yankee Nuclear Power Corporation filed

an application with the AEC on December 2, 1966, for a

construction permit «and operating license for a nuclear

power -station to be located in the town of Vernon, Ver-

mont. After consideration and amendment, the AEC, pur-

suant to the Atomic Energy Act of 1954, as amended and

the regulations in Title 10, CFR, Part-50 “Licensing of

Production and Utilization Facilities,’ Part 2, “Rules of

Practice.” issued a “Notice of Hearing on Application for

provisional Construction Permit”. This notice: was pub-'

lished in the Federal Register on _ 30, 1967 — Fed.

Reg. 9334).

The AEC Litensing Board held a prehearing conference

on July 18, 1967 at Brattleboro, Vermont. The State of

New Hampshire at the conclusion of the prehearing con-

ference filed a motion to intervene, which was eventually |

accepted by the Board. The Board held the first phase of

the hearing in Brattleboro on the Ist and 2d of August

1967. The second phase of the hearing was held on the

6th and 7th of September. At the hearings considerable

evidence was proferred by the States of New Hampshire .

and Vermont and the Commonwealth of Massachusetts

.on the potential effects of thermal pollution on the environ- |

ment and the ecology of the subject area-which may be

caused by the proposed facility. By order of the Board .

dated October 26, 1967 the hearings were closed.

The State of New Hampshire seasonably filed requests

for findings of facts and rulings of law. It siso filed mo-

4

tions to stay the proceedings pending final judicial review.

Such motions and .requests were denied. The Board in an

initial decision, dated December 8, 1967, granted “Ver-

mont Yankee” a pfovisional construction permit. Excep-

tion was seasonably taken by the State of New Hampshire,

and the matter was transferred to the full-Commission. On

April 8, 1968 the Commission issued a “Memorandum and

Order” affirming the Boards decision. To this ruling the

State of New Hampshire requested a rehearing. Said re-

hearing was denied on. May 8, 1968.

The State of New Hampshire seasonabl} took an ap-

peal to the United States Court of Appeals for the First

Circuit. Jurisdiction was involved persuant to the provi-

_ sions of 28 U.S.C. s. 2342 (Supp.) and 42 U.S.C. 2239,

The Vermont Yankee Nuclear Power Corporation

proposes to construct and operate a boiling water nuclear

powered facility at Vernon, Vermont. Vernon, Vermont

is located on the Connecticut River, at a point four miles

more or less upstream from the Massachusetts border.

New Hampshire territory extends to the natural high water

mark on the westerly (Vermont) side of the River. The

River has been declared a “cold water fishery” by the

effected States and the Federal Government. Such a classi-

fication requires that the stream will be suitable for the

propagation of anadromous species of fish (Salmon, shad,

trout).

The facilities as initially designed proposed to draw a

maximum instantaneous circulating flow of 780 c.f.s. from

the river. Theapplicant had indicated that the flow regimen

of the river would be re-regulated by upstream dams to

provide a maximum flow of 1200 c.f.s. for the facility.

The water taken from the river would pass through the

condensers, at the assumed 100 percent load factor and

circulating water flow, and its temperature would be raised

20.2°F. Under the initial. plans the water would be re-

5

turned to the river over a river bank aerator with an as-

sumed temperature reduction of 2.2°F. Thus at-the point

of discharge there will be temperature increases of the

stream of up to 18°F and in the Vermont Dam Compound,

which is approximately 2,500 feet away, the temperature :

rises will far exceed 4°F.

During the course of the hearings “Vermont -Yankee”’

changed the design of the facility to include cooling towers.

_ Cooling towers would permit the‘utilization of the facility

in such a manner as to regulate the temperature of the

water being returned to the river. Thus the company could,

as they saw fit, vary the temperature of the water return-

ing to the river from a high of 18°F to a low of 0°F. How-

ever, it should be noted that the AEC assumed no control

over the operation of the towers.

The intervening States attempted to introduce evidence

of the potential effects of thermal poliution which would be

caused by the operation of the proposed facility. Their

evidence being’ rejected, they made offers of proof, indicat-

ing that the introduction of heat into the River would have

the following effect.

a. Remove the D.O. (Dissolved Oxygen) from the

-water thus. eliminating the ability of the river to accept

treated sewerage. Thus the water would become polluted

and eliminate its use for fishing, bathing and drinking.

-b. The introduction of heat and the rapid changes

in temperature would destroy the use of the river as ‘a

cold water fishery. These water temperatures effect the

fish population as follows:

i. Cause death by thermal shock.

ii. Trigger the spawning device prematurely.

iii. Create a thermal barrier which prevents the

passage of the fish upstream to the spawning grounds.

a a

eae

c. The effects on the ecology of the river were such

as could create algae and destroy all plant and animal life.

The States further requested that unless the Atomic

Energy Commission assumed jurisdiction of this phase of

the case there could be no effective State regulation. The

rational of this intervenor was that the applicable State

laws and posture of “{Vermont Yankee”. was such that

irreparable harm would be done to the river and its ecology.

The Atomic Energy Commission was asked to assume its

responsibility as follows: :

1. Hear all evidence: relative to the potential effects of

thermal pollution.

2. Issue an order for the construction and operation

of the facility predicated on compliance with applicable

Federal Laws and the laws of New Hampshire, Vermont

and Massachusetts. (specifically N. H., R.S.A. Chapter

149) re

On January 13, 1969 the Circuit Court of Appeals for

the First Circuit held in favor of the Respondent and on

January 27, 1969 it denied Petitioners Motion for

rehearing. |

REASONS FOR GRANTING WRIT

Relief is, being sought from this court for the following

reasons: + ere

(1) The specific question involved, to wit, the

interpretation of the powers of the Atomic En-

ergy Commission, has. not to date been decided

by this Court. |

(2) The lower Court’s decision effectively des-

troys the State’s powers to regulate the discharge

7

of effulent from facilities into State waters, pur-

suant to N. H.R. S. A. Chap. 149 and ‘similar

State Statutes.

(3) The actions of the Atomic Energy Commis-

sion are the initial steps in the taking of private

property without due process of law. Such act is

prohibited by the 5th Amendment to the U. S.

Constitution.

The burning issue of our times being presented squarely

to this Court is, can a Federal Agency act oblivious to

and ‘in total disregard of the duties of other Federal and

State Agencies to protect the rights of the public and in

effect, deter if. not totally’ destroy the work and purposes

of such agencies. The Atomic Energy Commission has

authorized the construction of a one hundred twenty mil-

lion dollar facility which when constructed and operating

would create thermal pollution in the Connecticut River.

Such action is contrary to the duties of the States and the

Federal Government to rid our waters of pollution. If this

action is permitted to stand the millions of dollars invested

by State, Federal and private sources to rid the Connecti-

cut River of pollution would be reridered worthless. The

public would also be deprived of its right to use the waters

for recreation and industrial purposes. This perpetuation of

this principal will also have a detrimental effect upon other

areas of the government and the private sector.

The State of New Hampshire argues that the Atomic -

Energy Act of 1954 as amended 42 U. S. C. S. 2011

et seq. gives the Atoinic Energy Commission the power

to review aspects of thermal pollution in one of the fol- .

lowing manners.

(1) It may review evidence of thermal pollution

and make definite findings of fact relative to

same.

8

(2) It must at least review the evidence relative

to thermal pollution to determine whether or not

other States or Federal Agencies are affected. If

other States or Federal Agencies are involved and

licenses or permits are required then any license

or permit issued by the Atomic Energy Commis-

sion must be. predicated upon ubtaining such per-

mit from the affected State or Federal Agency.

The determination of the issue at bar turns on the

definition of the term “health and safety of the public” as,

used in the Atomic Energy Act of 1954 as amended 42

U.S. C. s. 2011 et. seq. Said Court in effect held that |

there was no statutory definition of the term “health and

safety of the public.” It further held that the “plain mean-

ing” of said term would compel consideration of all aspects

of thermal pollution; however, the statutory history of the

Act precluded this determination.

‘The Court relied heavily on the Case of Power Reactor

Development Co. v. International Union of Electrical

Workers 376 U.S. 396, 409 (1961), which gave great

weight to the activity and/or inactivity of the Joint Com-

mittee on Atomic Energy. The failure of the Joint Com-

mittee to speak in the face of the Commission’s continual

refusal to consider aspects of thermal pollution led the

Court to the conclusion that the Atomic Energy Commis-

sion did not have jurisdiction over thermal pollution.

Petitioner, argués that the Circuit Court by giving the

action of the Joint Committee on Atomic Energy the effect

of law misinterpreted the decision in the Power Reactor

Development Co., case, supra. A full review of the facts

would compel a finding that the A. E. C. had jurisdiction

over aspects of thermal pollution. In support of this prop-.

osition we advance the following arguments. |

‘

1. Power Reactor Development Co., supra did

not deal.with the issue of thermal pollution.

2. The inaction of Congress, and the Joint Com-—

mittee on Atomic Energy may have some bearing

on procedural aspects of the Commission’s work

but should be totally disregarded with respect to

substantive issues such as the review of thermal

pollution which would be caused by the proposed

facility when operated.

3. Pollution of the air and natural resources is

the second most important domestic problem in

this Country. P

4. Congress, The President, the States, and the

Private Sector have spoken out in the area of

poilution. Two specific instances, though misin-~

terpreted by the Circuit Court, are 33 U. S.C. s.

466 et. seq. and Executive Order No. 14288 i

F. R. 9261)

The second phase of this Appeal deals with the violation

of the Constitutional rights of the citizens of New Hamp-

shire by the taking of their rights to use industrially and

recreationally the Connecticut River. As a practical matter

once the facility is constructed no action can effectively

* prevent the use of this one hundred twenty million dollar

facility. Thus by permitting the Utility Company to build

the facility it is giving it the right to ase the waters of the

Connecticut River which will deprive the citizenry of N. H.

of their use of same without due process of law contrary

to the 5th Amendment to the U. S. Constitution. |

The proposition that private property may not be taken

from one citizen for the use of another in a non govern-

mental capacity is prohibited. Brest v. Jacksonville Ex-

pressway Authority, 194 So. 2d 685 aff’d 202 So. 2d 748

10

_ (1967) ; Rundee Inlet A uthority v. Bascum ct al. 206 Va.

906, 147 SE 2d.131 (1967)

It is argued that there is a taking of private property

rights by the Atomic Energy Commission either by set-

ting in motion or the direct action of its controlled licensee

in the eventual use of the waters of the.Connecticut River.

Such action violates the provisions of the 5th Amendment

to the U. S. Constitution as follows: ‘

-1l. The Utility and the A. E. C. have no stat-

utory authority to take property in this manner by

eminent domain.

2. The action is a taking of private property

for other private individuals in a commercial (non

governmental use). :

3. The action is a taking of private property

without due process of law, and the payment of

just compensation. The Utility now as a practical

matter may avoid the necessity of acquiring a

permit under N..H. R. S. A. Chapt. 149 and

complying with the water. quality standards rela-

tive thereto.

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

_ Respectfully submitted

Counsel for Petitioner

R. PETER SHApiRo, Eso.

11 S. Main St.

Concord, N. H. 03301

A-1

APPENDIX A

UNITED STATES CONSTITUTION

_ AMENDMENT 5. ©

“No person shall be held to answer for a cap-

ital, or otherwise infamous crime, unless ‘on a.

presentment or, indictment of a grand jury, ex-

cept in cases arising in the land or naval forces,

‘or in the militia, when in actual service in time

of war or public danger; nor shall any person be

subject for the. same offence to be twice put in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness ayainst him-

self, nor be deprived of life, liberty, or property,

without.due process of law; nor shall private

property be taken for public use, without just

compensation.”

* * *

.. UNITED STATES CODE

TITLE 42 }

. 2013 Purpose of chapter,

“Tt is the purpose of this chapter to effectuate

the policies set forth above by providing for—

(a) a program of conducting, assisting, and

fostering research and development in order to

encourage maximum scientific and industrial

progress ;

- (b) a program for the dissemination of un-

classified scientific and technical information and

for the control, dissemination, and declassification

ees ee ea en Lee

Ad

of Restricted Data, subject to appropriate safe-

guards, so as to encourage scientific and industrial

progress; |

(c) a program for Government control of the

possession, use, and production of atomic energy

and special nuclear material, whether owned by

the Government or cthers, so directed as to make ~

the maximum contribution to: the common de-

fense and security and the national welfare; and

to provide continued assurance of the Govern-

ment’s ability to enter into and enforce agree-

ments with nations or groups of nations for the

control of special nuclear materials and atomic

weapons; |

(d) a program to encourage widespread par-

ticipation in the development and utilization of

atomic energy for peageful purposes to the maxi-

mum extent consistent with the common defense

and security and with the health and safety of

the public; | .

‘(e) a program of international cooperation to

promote the common defensé and security and to

make available to cooperating nations the bene-

fits of peaceful applications of atomic energy as

widely as expanding technology and considera-

tions of the common defense and security will

permit; and

(f) a program of administration which will

‘be consistent with the foregoing policies and pro-

grams, with international arrangements, and with

agreements for cooperation, which will enable the

Congress to be currently informed so as to take

further legislative action as may be appropriate.-

(Aug. 1, 1946, ch. 724, s. 3, as added Aug. 30,

~A-3

1954, ch. 1073, s. 1, 68 Stat. 922, and amended

Aug. 26, 1964, Pub. L. 88-489, s. 3, 78 Stat:

602.)” |

* * *

. 2011 © Congressional declaration of policy.

“Atomic ehergy is capable of application for

peaceful as well as military purposes. It is there-

fore declared to be the policy of the United States

that—

(a) the development, use, and control of

atomic energy shall be directed so as to make the

maximum contribution to. the general welfare,

subject at all times to the paramount objective

of making the maximum contribution to the com-

mon defense and security; and

(b) the development, use, and control of

atomic energy Shall be directed so as to promote

world peace, improve the general welfare, in-

crease the standard of living, and strengthen free

competition in private enterprise. (Aug. 1, 1946,

ch. 724, s 1, as added Aug. si 1954, ch. 1073,

S. 1, 68 — 9e21,)”

* *x | Ok

. 2021 Cooperation with States.

sé

. (k) State regulation of activities: for

certain purposes.

Nothing in this section shall be construed to

affect the authority of any State or local agency

to regulate activities for purposes other than

protection against radiation hazards.

A eT Rib ee Cir age

A-4

s. 2133 Commercial licenses.

“c

... (b) » Nonexclusive basis.

The Commission shall issue such licenses on.a

nonexclusive basis to persons applying thérefor

(1) whose proposed activities will serve.a useful

purpose proportionate to the quantities of special

nuclear material or source material to be utilized;

(2) who are equipped to obsérve and who agree

to observe such safety standards to protect health

and to minimize danger to life or property as the

Commission may by rule establish; and (3) who

agree to make available to the Commission such

technical information and data concerning activ-

ities under such licenses as the Commission

- may determine necessary to promote the common

defense and security and to protect the health and

safety of the public. All such information may

be used by the Commission only for the purposes

_ of the common defense and security and to protect

the health and safety of the public.

(c) - Each such license shall be issued for a

specified period, as determined by the Commis-

sion, depending on the type of activity to be li-

_censed, but not exceeding forty years, and may

be renewed upon the expiration of such period.

iy * * *

. 2201. General duties of Commission.

“In the performance of its functions the Com-

mission “is authorized to—

° @>

A-5

. (b) Standards governing use and pos-

session of material.

establish by rule, regulations, or order, such

standards and instructions to govern the posses-

sion and use of special nuclear material, source

material, and byproduct material as the Commis-

sion may deem necessary or desirable to promote

the common defense and security or to protect

health or to minimize danger to life or preperty;

UNITED STATES CODE

TITLE 33

s. 466 (h) Cooperation t6 Control Pollution from Fed-

eral Installations. —

“(fi) It is declared to be the intent of the

Congress that any Federal department or agency |

having jurisdiction over any building, installation, —

or other property shall, insofar as practicable and

consistent with the interests of the United States

. . cooperate with ... any State. . . having juris-

diction over waters into which any matter is dis-

charged from such property, in oo rcon-

trolling the —— of such waters.”

ee *

EXECUTIVE ORDER 11288

(31 E.R. 9261) |

“Prevention, Contrel, and Abatement of Water

Pollution by Federal Activities.

“By virtue of the authority vested in me as

President of the United States and in furtherance

A-6

of the purpose and policy of the Federal Water

Pollution Control Act, as amended (33 U.S.C.

466), and Reorganization Plan No. 2 of 1966

(31 F.R. 6857), it is ordered as follows:

“SECTION 1. Policy. The heads of the

departments, agencies, and establishments of the

Executive Branch of the Government shall pro-

vide leadership in the riationwide effort to improve

water quality through prevention, control, and

abatement of water pollution from Federal Gov-

ernment activities in the United States. In order

to achieve these objectives—

a) )

“2) a | :

“(3) Pollution caused by all other operations

of the Federal Government, such as water re-

sources projects and operations under Federal

loans, grants, or contracts, shall be reduced to the

lowest level practicable ;

“(4) Review and surveillance of all such

activities shall be maintained to assure that pol-

lution contro] standards are met on a continuing

basis;

“(S) The Secretary of the Interior shall, in

‘admininistering the Federal Water Pollution Con-

trol Act, as amended, provide technical advice

and assistance to the heads of other departments,

agencies, and establishments in connection ‘with

their duties and responsibilities under this order;

“(6) The head of each department, agency,

and establishment shall ensure compliance with

Section 11 of the Federal Water Pollution Con-

A-7

trol Act, as amended (33 U.S.C., 466h), which,

as modified by Reorganization Plan No. 2 of

1966 (31 F.R. 6857), declares it to be the intent

of Congress that Federal departménts and agen-

cies shall, insofar as practicable and consistent

with the interests of the United States and

within available appropriations, cooperate with

the Secretary of the Interior and with State and

interstate agencies and municipalities, in prevent-

ing or controlling water pollution; and

“(7) Water pollution control needs shall be

considered in the initial stages of planning for

each new installation or project, and the head of

each department, agency, and establishment shall

establish appropriate procedures for securing ad-

vice and for consulting with the Secretary of the

Interior at the earliest feasible stage.

a. 2 tay.

“ 1 ie

‘in 2 eee

‘ ei

“SEC. 4. | General standards. (a) Fed-

eral installations shall provide secondary treat-

ment, or its equivalent, for all ‘wastes except

cooling water and fish hatchery effluents. Dis-

charge of wastes into municipal Sewerage systems

maintaining adequate treatment is hereby declared

to be the preferred method of disposal. However,

_ whenever connection to such a system is not fea-

sible, the department, agency, or establishment

concerned shall be responsible -for installing its

own waste treatment system. Upon an applica-

CORR EL IOLA FAL RAS

Ra SRR DLN a IO anti Sant ae IP ee we eee ction thst - —

A-8

tion of the head of a department, agency, or

establishment, a degree of treatment less than

secondary may be approved with respect to an

agency-installed system in an exceptional case if

the Secretary of the Interior finds that a lesser

degree of treatment is adequate to protect the

quality of. the receiving waters.

“(b) If discharge of cooling water is ex-

pected to create problems by significantly increas-

ing the temperature of the receiving waters,

facilities shall be installed, of operating proced-

ures shall be established, to maintain water tem-

peratures within acceptable limits.

Tae + %

“(d) No waste shall be discharged into

waters if it contains any substances in concen-

trations which are hazardous to health.

“(e) No waste shall . be discharged into

waters if it contains any substances in concen-

trations which will result in substantial harm to

domestic animals, fish, shellfish, or wildlife, if

methods of treatment or disposal are available

that will remove or render harmless such pollu-

tants. If such metheds are not available, but can

reasonably be developed, they will be developed

and used at the earliest possible date. A deter-

mination that such methods are not available or

cannot reasonably be developed will not be made

without the concurrence of the Secretary of the

Interior.

“(f) The head of each department, agency,

and establishment shall, with respect to each in-

stallation in the United States under his jurisdic-:

tion, make, or cause to be made, such surveys as

ia

A-9

may be necessary to ensure that discharges of

waste effluents from activities concerned with ra-

dioactivity are in accord with the applicable rules,

regulations, or requirements of the Atomic

Energy Commission (10 CFR, Part 20) and

the policies and guidance of the Federal Radia-

tion Council as spsibin in the FEDERAL

BREGISIER. ~——

“(g) Construction and operating plans for

waste treatment facilities shall include space for

the conduct of necessary laboratory analyses and

for the maintenance of records of results thereof

whenever the. size and complexity of the system

makes this necessary.

“(h) Construction and operating plans for

waste treatment facilities shall take into account

water quality standards promulgated pursuant to

the provisions of the Water Quality Act of 1965

(79 Stat. 903).

i ee

en

ee eas.

ie: (oe

¢

. “SEC. 7. Review of facilities or operations

supported by Federal loans, grants, or contracts.

(a) The head of each department, agency, and

establishment shall conduct a review of the loan,

grant, and coutract practices of his organization

to determine the extent to which water pollution

control standards similar to those set forth in this

order for direct Federal operations ‘should be ad-

2 WEIR eee Se RIPEN I EEE BOLE IE TIE RMON SS PILPG # | o

ARs

aS MSR ER, BAe i boat aD ng Crane

. A-10

-hered to by borrowers, grantees, or contractors

with respect to their operations in the ‘United

States. The head of each department, agency, and

establishment shall review all such activities for

which there is 2 significant potential for reduc-

tion of water pollution and develop appropriate

recommendations for accomplishing such reduc- .

tion. In conducting .this review, necessary tech-

nical assistance should be sought from the Secre-

tary of the Interior and the heads of other ap-

propriate Federal agencies.. A report on the re- .

sults of this review shall be submitted to the Di-

rector of the Bureau of the ee by July 1

1966.

‘“(b) The heads of departments, agencies, and

establishments are encouraged to prescribe reg-

ulations covering loan, grant, or contract prac-

tices designed to reduce water pollution.

“SEC. 8.

“SEC. 9,

B-1

APPENDIX B

UNITED STATES OF AMERICA

ATOMIC ENERGY COMMISSION

COMMISSIONERS: ae -

Glenn T. Seaborg, Chairman

James T. Ramey

Gerald F. Tape

Wilfrid E. Johnson

DOCKET NO. 50-271

In the Matter of

VERMONT YANKEE NUCLEAR POWER

CORPORATION

(Vermont Yankee Nuclear Power Station)

MEMORANDUM AND ORDER

On December 8, 1967, an atomic safety and Licensing

board, in an initial decision, ordered that a provisional

construction permit be issued under Section 104 b. of

the Atomic Energy Act to the Vermont Yankee Nuclear

Power Corporation, the applicant herein, to build a boiling

water reactor at the applicant’s site in the town of Vernon,

Vermont. The initial decision also authorized the grant to

the applicant of an interim exemption from the financial

qualifications requirements of 10 CFR Part 50.

The State of New Hampshire, an intervenor in this

proceeding, has filed exceptions to the initial decision and

to certain earlier rulings of the board. These exceptions are

premised principally on the board’s refusal to consider, for

lack of jurisdiction, the matter of thermal effects of facility

- cooling water discharges on the Connecticut River. The

Soh OD ent aleeie |

B-2

State asks that the Commission remand the proceeding

to the board for further consideration, “including a review

of the effects of thermal pollution”, and that we enter

an order staying the provisional construction permit.

Exceptions to the initial decision, with a request for

oral argument, have also been jointly filed by the following:

the Power Planning Committee of the Municipal Electric

Association of Massachusetts; the Town of Shrewsbury,

Massachusetts, Electric Light Plant; the Town of Wake-

field, Massachusetts, Municipal Light Department; and the

City of Chicopee, Massachusetts, Municipal Lighting Plant

(collectively, the “Massachusetts Municipals”). These ex-

ceptions ask that we reverse the board’s denial of inter-

vention to the Massachusetts Municipals and that we re-

mand the proceeding to the board to receive evidence and

make findings principally inthe following areas: whether

the form of. ownership and organization for the project,

or the proposed license, would tend to create or maintain

a situation inconsistent with the antitrust laws; and whe-

ther the instant application covers a “commercial” project

rather than a; “research and development” project.

The staff and the applicant completed the filings before

us with briefs submitted on January 10, 1968, which op-

posed both sets of exceptions as well as the need for oral

argument thereon.

The proposed Vermont Yankee facility will employ a

- single-cycle, forced circulation, boiling water reactor with

an initial power level of 1593 megawatts thermal and an

_ ultimate expected operating capability of .1665 megawatts

‘thermal. The reactor has a core of the same high power

density as the core authorized for use in the Tennessee

Valley Authority’s Browns Ferry Units 1 and 2 but will

be approximately one-half the size of the Browns Ferry

core. The facility’ will have a field-fabricated pressure

vessel of a design essentially identical to that approved for

B-3

construction in Monticello Unit No. 1 of the Northern

States Power Company.

As is the case with other power reactors Sienna by

the Commission, the Vermont Yankee facility will incor-

porate a variety of design features and systems for the

protection of plant employees and the public. The initial

decision describes the primary and secondary containment

systems and the principal: engineered safeguards for the

maintenance of core and containment integrity both in

normal operation and under emergency conditions.

The application’ and its eight amendments have been

reviewed by the regulatory staff and the Advisory Com-

mittee on Reactor Safeguards, both of which have con-

cluded that there is reasonable assurance the proposed -

facility can be constructed and operated without undue

risk to the health and safety of the public. Except as re-_

gards matters raised by the State of New Hampshire

relative to thermal effects (discussed more fully below),

neither of these appeals question the similar health and

safety conclusion of the board—a conclusion we also share

from our review of the record.

The Massachusetts Municipals, as earlier stated, have

requested oral argument on their exceptions. We believe,

however, that the matters covered by the exceptions can

be adequately dealt with on the basis of the written argu-

ments already submitted and that oral presentations are

unnecessary.

Exceptions of the State of New Hampshire

- We address our attention first to the exceptions which

have been filed by the State of New Hampshire. A brief

recital of the proceedings before the board which bear

on these exceptions will be helpful in placing them in

appropriate context. Following commencement of the hear-

ing, the board granted petitions for leave to intervene filed

SAS ARE

PLONE PIE AS ILO PER LI” LICL OTN

le Ne Riot REL we

B-4

by the State of New Hampshire, the State of Vermont,

and the Commonwealth of Massachusetts. All three States’

asked the board to assert jurisdiction over matters relating

to thermal effects of the operation of the proposed facility

on the Connecticut River. The States sought to intfoduce

evidence intended to show that operation of the plant with-

out a cooling tower system for reducing the temperature

of water discharged into the River would result in harm

to the natural resources of the River. The regulatory staff

_and the applicant objected to the introduction of the prof-

fered evidence on the ground that thermal effects are a

matter outside the jurisdiction of the board and the Com-

mission. The board, in a series of rulings which are sum-

marized in the initial decision and the notes appended

thereto, sustained these objections and ruled the evidence

inadmissible.

During the course of the hearing, the applicant noted its

intention to install an open-cycle cooling tower system for

the facility. Pursuant to a request of the board, the appli-

cant prepared and submitted to the board and the parties

design information on the proposed system. This informa-

tion was reviewed by the staff and the Advisory Committee

on Reactor Safeguards, both of which reported favorably

on the design of the proposed system as respects radio-

logical health and safety considerations.

Aes reflected in the initial decision, in their response to

the supplemental evidence submitted by the applicant with

respect to its cooling tower system, the States took the

position that the evidence submitted was insufficient and

incomplete. The States argued that water quality standards

for the Connecticut River are presently being formulated;

that the open-cycle cooling tower system described by the

applicant might not be capable: of meeting these standards

once they are set; and that a safety analysis of the system

might not cover what is ultimately required. It was also

asserted that the applicant did not furnish sufficient detail

ot te aa Ba NaN

B-5

about its proposed accommodation to the final water quality

standards.

In the initial decision, the board stated its view that the

evidence submitted by the applicant with respect to the

proposed cooling tower facilities was sufficient, for pur-

poses of this proceeding. The.board explained that an

applicant for a provisional construction permit i8 not re-

quired to supply all the technical infprmation needed for

a construction ‘permit which approves all design features.

It went on to state that our regulations also anticipate

that changes may be necessary in the design of a facility

after a construction permit has been issued and provide

procedures for obtaining approval of such changes. In this

context, the board concluded, the possibility that the appli-

cant may sometifne in the future have to change the design

of its proposed installation to accommodate State require-

ments, is entirely compatible with the nature of a provi-

sional construction permit proceeding. ;

Of the three intervening States, only the State of New

Hampshire has excepted to the initial decision. The 28

tersely-stated exceptions filed by New Hampshire are ac-

companied by no explanatory brief. Rather, the State, in

support of its position that the exceptions noted constitute

reversible error, “cites, for such authority its prior Memo-

randum of Law incorporated in its offer of proof and the

Memorandum of Law submitted by the Commonwealth of

Massachusetts”. In responding to these exceptions, the

staff and the applicant have, save in one instance,* dealt

*In Exception #28, the State disputes the board’s order denying a motion

to make the proceeding a contested one. It asserts that this involves a failure

on the part. of the board “to follow the standards of review for 4 contested

proceeding pursuant to 10 CFR § 2.104”.- The staff points out, and we agree,

that the initial decision makes it clear that the board followed the stricter

standards for review applicable to a contested proceeding. The board’s find-

ings and conclusions on the issues satisfied the requirements for a contested

proceeding as did its independent review leading thereto. 10 CFR § 2.104(b). °

In addition,- the board expressly declared that it observed’ the rules on

ex parte communications applicable to a contested proceeding. 10 CFR § 2.719.

.

4

Peay OUTS EE OTE S

PALMA LID WD nd amen ew

B-6

with them in terms of two basic issues raised rather than

responding ‘to each exception separately. Our examination

of the State’s exceptions, in the light of the memoranda

to which it has referred, leads us to agrée that the two

basic issues which these exceptions present are:

(a) Whether the Atomic Energy Act of

1954, as amended, vests in the Commission juris-

diction to consider in the licensirig and regulation

of nuclear facilities health and safety matters

other than those relating to radiological health

and safety; and ,

(b) Whether the provisions of the Federal

Water Pollution Control Act, as amended by

the Water Quality Act of 1965, and Executive

Order 11288 enlarge the Commission’s regulatory

jurisdiction. |

For the reasons set forth. below, we believe that both of

these issues must be resolved against the position taken

by the State of New Hampshire.

Any jurisdictional inquiry in this regard must begin,

of course, with our own Act. It is clear from an examina-

tion of the sections of the Act which bear on the licensing

and regulation of nuclear facilities and materials that a

guiding criterion for the Commission is that its authority

be exercised so as to protect the health and safety of the

public.” We believe it further evident, however, that~the

considerations of public health and safety to which the

Act speaks are those which relate to the’ special hazards

generated by the operation of nuclear facilities and the

use of nuclear materials. Stated in other terms, the Com- .

mission’s regulatory authority in the health and safety

area is limited under the Act to matters of radiological

health and safety. That such is the purport of the Act is

*See, e.g., Sections 53, 103, 104, 161 b. and i, and. 182 of the Act.

B-7

reflected in its “Findings” and “Purpose” (Sections 2

and 3) and inthe relevant statutory definitions: (see, e.g.,

Section 11 v. and cc.). These bounds to the reach of the

Act find further expression in authoritative Congressional

statements respecting the statute’s scope’ and in amend-

ments to the Act itself.

In line with our understanding. of the authority respect-

ing public health and safety matters which the Act confers

upon the Commission, we have consistently interpreted the

Act as confining that authority to considerations of radio-

logical health and safety. The provisions of 10 CFR Part

50, which set forth criteria for the issuance of licenses

for production and utilization: facilities, establish, insofar

as public health and safety in concerned, standards which

relate. to assurance of protection against radiological ha-

zards. (See also, 10 CFR Parts 20, 70 and 100.) Further-

more, our rules of Practice, 10 CFR Part 2, express our.

recognition that thermal effects, as contrasted to radio-_

logical effects, are a matter ou

atomic safety and licensing boar

and are not relevant to the issues in

10 CFR Part 2, App. A., Sec. IiI(c

on the Commission’s jurisdiction is

ide the jurisdiction of

and the Commission

licensing proceeding.

(7). This limitation

271 of the Act, stated the recognition “by the drafters’\ of the 1954 Act

ms involving the

and safety of

the operation

of nuclear facilities.” (p. 4). ‘

‘Section 274 of the Act, enacted as an amendment in 1959,

cedures under which the Commission may relinquish to {ndividual

tain health and safety authority over. nuclear materials. Section 274 a, states

that one-of the purposes of the section (reiterated in the ‘implementing sub-

sections) is: “(2) to recognize the need, and establish programs for, coopera-

tion between the States and the Commission with respect to control of radia-

tion hazards associated with use of such materials.”

“* See, Matter of Consolidated Edison Co. of New York, Inc., Memorandum

and Order dated November 24,1965 (3 AEC 62); Matter of Jersey Central

Power and Light Co., Initial Decision dated December 4, 1964 (2 AEC

446,447), affirmed, Decision dated May 6, 1965 (3 AEC 28). ;

.

B-8

We think it additionally worth noting that this consistent

interpretation of the scope of our regulatory authority, in

the form of both regulations and adjudications, has been

brought to the attention’ of the Congress, including the.

Joint Committee on Atomic Energy.

_ The limitations imposed upon our jurisdiction by the

Atomic Energy Act are not altered, we believe, by the

Water Quality Act of 1965 (P. L. 89-234). The State -

of New Hampshire contends that this Act requires all

Federal agencies to act in such a manner as to abate and

.. avoid pollution and that it enables the Commission to con-

trol thermal effects in the exercise of its\regulatory author-

ity. The State lays particular emphasis on the provision

which states (33 USC 466 h.):

“It is declared to be the intent of Congress that

any Federal department or agency having juris-

diction over any building, installation or .other

property shall, insofar as practicable and consis-

tent with the interests of the United States and

within any available appropriations, cooperate

with... any State... having jurisdiction over

waters into which any matter is discharged from

such property, in preventing or controlling the

pollution of such waters.”

The foregoing provision is applicable ‘by its terms to

buildings, ‘installations or other property over which a

Federal agency has jurisdiction. While the cited language

thus covers installations owned by or operated for the

Commission, the Commission does not exercise over li-

censed facilities the kind of jurisdiction which the statute

contemplates. Plainly, the terms .of the statute in no way

®°The Water Quality Act of 1965 affected extensive amendments to the

earlier-enacted Federal Water Pollution Control Act (P. L. 86-660). The

Clean Water Restoration Act of 1966 (P.L. 89-753) further amended the

-Federal: Water Pollution Control Act. —

a

Wai a acts eae ate al ee

B-9

purport to enlarge the Commission’s regulatory jurisdic-

tion under the Atomic Energy Act.

The State of New Hampshire also places reliance on

Executive Order 11288, promulgated by the President on:

July 2, 1966 (31.F.R. 9261), in furtherance of the pur-

pose and ‘policy of the Federal Water Pollution Control

Act. In support of its position, the State cites several sec-

tions of the Executive Order, including subsection (3) of

Section (1), which provides: |

“(3) Pollution caused by all other operations of

the Federal Government, such as water resources

projects and operations under Federal loans,

grants, or contracts, shall be reduced to the lowest

level practicable ;”

- We think the State’s arguments in this regard are mis- :

placed. Executive Order 11288 is, by itg terms, directed t

to Federal installations, facilities and buildings. (“direct _ t

Federal operations”) and to other’ operations of the Fed-

eral Government, such as those under Federal loans, grants ee

or contracts. The Commission’s licensing relationship to

nuclear facilities does not bring those facilities within the

purview of the Executive Order’s coverage of “direct Fed-

eral operations”; nor, in our view, are there any AEC

“loans, grants, or contracts” which would make subsec- °

tion (3) of Section (1) of the Executive Order applicable

to the Vermont Yankee facility. Moreover, as an overrid-

ing consideration, we cannot attribute to Executive Order

11288 the intent or effect of revising the Commission’s

regulatory authority in any manner not provided for in the

legislation under which it was issued.

PA AGA NETIR IES LI AS ELLE Ns AARON

bli aah

In sum, it is our view that the Commission’s regulatory

jurisdiction under the Atomic Energy Act respecting public

health and safety does not include control over thermal |

effects of ‘a nuclear facility and that no enlargement of our 5

B-10

jurisdiction is effected. by the Water Quality Act of 1965

or Executive Order 11288.’ :

Before leaving the matter of thermal effects, several

additional observations are in order. While, under: present

law, our regulatory jurisdiction as respects public health

and safety is limited to radiological hazards, the States

and the Federal Water Pollution Control Administration

of the Department of the Interior do have authority to

deal with thermal effects of. power plant discharges, under

the statutes previously cited. The board correctly pointed

out, ir this regard, that no licensing action on our part

relieves. a power reactor ticense from any obligation to

comply with applicable State and Federal controls.’

What has been stated above, leads us to a further com-

ment. Our regulatory staff, in the course of its licensing

review, makes it a practice to seek the expert advice of the

Fish and Wildlife Service of the Department of the In-

terior as to the radiological aspects of the release of

effluents from proposed nuclear power plants. The Fish

and Wildlife Service and, more recently, the Federal Water

Pollution Control Administration have also furnished the

regulatory staff with recommendations concerning non-

radiological matters relating to thermal effects from plant

cooling water discharges. The AEC has, in turn, transmit-_

ted: these recommendations on thermal effects to the li-

7 White thé point is now moot as a practical matter, we must also reject

the State of New Hampshire’s contention that thé board erred in making

its initial decision immediately effective and in not staying the issuance of

the provisional construction permit pending an appeal to the Confmis-

sion. In our view, the board’s actions were fully consistent with the Commis-

sion’s regulations. 10 CFR § 2.764.

*In this connection, we should further note our agreement with the board

_ that the possibility that the applicant may later have to change the design

of its proposed installation to accommodate State requirements, is compatible

with the nature of a proceeding for a provisional construction permit. The

evidence submitted by the applicant respecting the proposed cooling facilities

was sufficient for purposes of this proceeding. Our regulations, as the board

stated, anticipate that changes may be necessary in the design of a facility

after a construction pefmit has been issued and set forth procedures for

= and approval of such changes. See, 10 CFR § 50.58, 50.59, 50.90 and

0.91.

B-11

cense appligant and to appropriate State and local author-

ities and has encouraged the applicant to cooperate with

the cognizant governmental agencies. To the best of our

knowledge, this cooperation usually has been forthcoming.

The course described above has, we think, served a useful

purpose and we have recently agreed with the Department

of the Interior that this procedure should be: continued

pending enactment of any new legislation in this area.

We would, as a concluding comment, emphasize earlier

declarations we have made in support of programs seeking

to protect the Nation’s fish and wildlife resources: from

thermal effects of plant discharges. This is a potential

problem which is not unique to nuclear facilities but one

which also attends the operation of power plants using

fossil fuels. While a.number of legislative proposals have

been introduced in the Congress which would enlarge the |

regulatory authority of this and other Federal agencies to

deal with the matter of thermal effects, our present author-

ity is, necessarily, that prescribed by existing law.

* * *

It is therefore ORDERED that the exceptions filed by

the State of New Hampshire and by the Massachusetts

Municipals are denied. Further proceedings and decision in

respect of the matter of financial qualifications shall be.

effected as indicated hereinabove.

By the Commission.

W. B. McCool

Secretary

Dated: April 8, 1968

eM MERON ae

B-12

United States Court of Appeals

For the First Circuit

No. 7142. : |

THE STATE OF NEW HAMPSHIRE,

PETITIONER :

V.

ATOMIC ENERGY COMMISSION and

UNITED STATES OF AMERICA, °°

VERMONT YANKEE

NUCLEAR POWER CORPORATION,

| ' -INTERVENOR. Ta

PETITION FOR REVIEW OF AN ORDER OF THE

> - ATOMIC ENERGY COMMISSION

Before Atpricu, Chief Judge,

McENTEE and CoFFIn, Circuit Judges.

R. Peter Shapiro, Special Counsel, for petitioner.

Marcus A. Rowden, Assistant General Counsel, with whom Joseph F. Hen-

nessey, General Counsel, Howard K. Shapar; Assistant General Council, Li-

censing & Regulation, William C. Parler, Attorney,. Atomic Energy Commis-

sion, Edwin M. Zimmerman, Assistant Attorney General, and Seymour H.

Dussman, Attorney, Department of Justice, were on brief, for Atomic Energy

Commission et al., respondents. ;

Warren F. Farr, John A. Ritsher, and Ropes & Gray on brief for Ver-

mont Yankee Nuclear Power Corporztion, intervenor. .

January 13, 1969.

CorFINn, Circuit Judge. The state of New Hampshire

seeks review of an order of the Atomic Energy Commis-

sion (AEC), granting a provisional construction permit

B-13 '

to the Vermont Yankee Nuclear Power Corporation, or-

ganized by ten New England utility companies (applicant),

to build a nuclear power reactor at Vernon, Vermont, a

site on the Connecticut River, bordering New Hampshire.

The permit was issued at the conclusion of a reactor licens-

ing proceeding held under the authority of the Atomic

Energy Act of 1954, as amended, 42 U.S.C. § 2011, et seq.

The narrow but important issue is whether the Commis-

sion.erred in refusing to consider; as outside its regulatory

jurisdiction, evidence of possible thermal pollution of the

Connecticut River as a result of the discharge of cooling

water by applicant’s facility. The proposed installation, a

“boiling water” reactor, differs from a conventional elec-

tric power plant. in that the turbine generators which

produce the electrical energy are driven by steam derived

from the heating of water by the fissioning of uranium in

the reactor core. “Thermal pollution” ‘is used to designate

the effects on a river—its water, flora and fauna—of the

injection of heated water.

Applicant’s application, filed on December’ 2, 1966, was

subjected to review by the Commission’s staff, in the

course of which eight amendments were added, and by

the Advisory Committee on Reactor Safeguards. At the

subsequent public hearings before an atomic..safety and

licensing board, the states of New Hampshire, Vermont,

and Massachusetts were granted leave to intervene. All

three states sought to introduce evidence intended to show

that operation of the facility without a cooling tower

system for reducing the temperature of water discharged

into the river would harm the natural resources of the

river. The board ruled such evidence inadmissible on the

“Without purporting to make_a definitive summary of the extensive testi-

mony and offers of proof as to such alleged harm, we note the following

general thrust of the rejected evidence.

The states of Vermont, New Hampshire, Massachusetts and Connecticut

have agreed to a new, upgraded future use -classification for the Connecticut

River which would make it more’ suitable for bathing and recreation, provide .

PEPIN ES Brey Tm Shane? Sky oy

rdw mad

B-14

grounds that it related to matters beyond the Commission’s

jurisdiction, was proscribed by the Commission’s Rules of .

Practice, and was not directed to the issues noticed for

hearing.

“

The hearing occupied four days, August 1 and 2, and

September 6 and 7, 1967. On the fourth day, applicant:

noted during the hearing for the first time that it would |

expand the proposed facility to include cooling towers in its

open cycle system. It thereafter made three subsequent

written submissions on this aspect of its plans. These were

reviewed. by the Commission’s regulatory staff and the Ad-

visory Committee on Reactor Safeguards solely for their

impact on radiological health.and safety and were found

satisfactory. The three states contended that the supple-

mental evidence was incomplete and in insufficient detail,

that the addition of the towers might not enable the facility

to meet the newly evolving water quality standards for

the river, and that more safety precautions might ultimate-

‘ly be required. The board concluded that,. notwithstanding

an excellent fish and wildlife habitat, and a source of public water supply,

assuming appropriate treatment. A program for encouraging Atlantic salmon

and other anadromous fish is actively being considered. :

The estimated temperature increases in the river, if applicant’s facility were

constructed without cooling towers, would have a variety of deleterious effects.

The major effects were alleged to be. a substantial reduction in dissolved

oxygen and consequent capacity to assimilate municipally treated waste;

a change in the nature of aquatic plants and bottom fauna resulting, for

example, in an increase of odiferous algae; and destruction .of opportunity

to develop the river as a cold water fishery.

The latter conclusion was supported by proferred testimony that the

presence Of a zone of water of substantially higher than natural temperature

would (1) serve as a thermal barrier’ preventing fish from reaching their

spawning grounds at the river’s headwaters, {2) prematurely trigger spawning,

with resultant loss of fish population from inadequate terrain for depositing

roe, and (3) cause, through the abrupt change in temperature, thermal shock

to migrating fish, especially young smolt and fish weakened from the repro-

ductive process. Among the kinds of fish threatened are walleye pike, small

mouth bass, perch, brown and rainbow trout, shad, and Atlantic salmon.

In addition to these possible thermal ‘effects, the, discharge of algacides

used in cleaning’ the facility’s cooling system was alleged to be potentially

toxic to fish, as was the transmission of increasing concentrations of. radio-

active matter from aquatic invertebrates through radionuclides passed on

to fish through the food chain. While the latter claim would not seem to us

to be necessarily irrelevant to “public health and safety”, we find no suggestion

in the offers of proof that human consumers of fish would be harmed.

B-15

the possibility that some changes might later be necessary, .

a provisional construction permit could be issued. It is-

sued its initial decision, finding favorably for applicant on

the issues of public health and safety “within the meaning

of those terms as authorized by the Commission”. |

New Hampshire filed exceptions to. this decision, con-

tending that the Commission had responsibility for con-

sidering the effects of thermal pollution, not only under

the Atomic Energy Act of 1954, but also under the Water

Quality Act of 1965, P.L. 89-234, and Executive Order

11288 (31 F.R. 9261). The’ Commission denied the ex-

ceptions, relying on sections of the Atomic Energy Act

relating to findings, purpose, and definitions; Congres- ©

sional statements and subsequent amendments; its own

regulations and rules of practice and its own adjudica- .

tions. It held that neither the Water Quality Act of 1965

nor Executive Order 11288 were applicable-to installations

which it did not own: or operate. Z

Pra eg See

e

pla

The Commission pointed out that no es action on

its part relieved a licensee from any obligation to comply

with state authorities or the Federal Water Pollution Con-

trol Administration of. the Department of the Interior

which do have jurisdiction to deal with thermal effects of

power plant discharges. Its own efforts, pending action

on legislative proposals to enlarge the authority of the

Commission and other federal agencies, are limited to

forwarding recommendations relating to thermal effects

received from other federal agencies to applicants and

state and local authorities and encouraging cooperation by

the applicant with the proper governmental agencies.

RITE ELEN RELI OL EE RL LET ON RN EI A IY Le

We confront a serious gap between the dangers of

_ modern technology and the protections afforded by law as

the. Commission interprets it. We have the utmost sym-

pathy with the appellant and with the sister states of

Massachusetts and Vermont which took the same position

a

‘

B-16

before the Commission. That position was simply that

adequate planning be required of the applicant, before a

construction permit is issued in order to assure all feasible

protection against thermal pollution instead of waiting

until heavy investment has been made, and damage has

occurred or is imminent.’ To delay the day of reckoning is

to invite the unnecessary dilemma of choosing between

harming natural environment, with harmful effects on

even the health and well being of humans, and frustrating

the needed production of power,

In a sense there is no statutory chasm. The* Atomic

Energy Act: itself is replete with many references to

“health and safety of the public’? But in its section on

definitions, defining twenty-nine terms, 42 U.S.C. § 2014,

including ‘common defense and security”, any attempt

to delimit “health” and “safety” of the public 1s singu-

larly in absentia. There is therefore considerable appeal

to New Hampshire’s plea that we ascribe to these terms

their present day plain meaning, which would not exclude

all of the alleged adverse effects attributed to thermal pol-

lution (e.g., those having to do with reducing the waste

assimilative capacity of the river). |

Tempting as it may be, we do not presently feel that we

fulfill our function responsibly by simply referring to the

dictionary. This is perhaps:a more legitimate occasion

than most for invoking Mr. Justice Holmes’ aphorism that

“A page of history is worth more than a volume of logic.”

New York Trust Co. v. Eisner, 256 U.S. 349 (1921). Or,

conceding that there is a gap, an open space, between the

law as interpreted by the Commission and by the Congress,

and a demonstrable social interest, we may well be mindful

2The same position has been taken by other public bodies and citizens’

groups relative to the planning of other nuclear power facilities. See, e.g.,

National Fisherman, December, 1968, pp. 21-A, 22-A [dispute over planned

discharge of cooling water from proposed facility at Turkey Point, Florida].

3 See, ¢.g., Sections 53 b., .63 b., 81, 103 d.. 104 d., 161 b., and 161 i. 42

wal tite 2073 (b) 2093 (b), 2099, 2111, 2133 (d), 2134 (d), 2201 (b), and

i). ;

B-17

of Mr. Justice Cardozo’s admonitory gesture, “Even with-

in the gaps, restrictions not easy to define, but felt, how-

ever impalpable they may be, by every judge and lawyer,

hedge and circumscribe his action.” Cardozo, The Nature

of the Judicial Process, p. 114.

Here we feel a very palpable restriction in the history

surrounding the probtem addressed by the Congress, the

subsequent Congressional confirmation of the limited ap-

proach taken by the Commission, the contemporary ef-

forts in ‘the Congress to broaden, that approach, and a

recognition of the complexity of administrative arrange-

ments which would attend a liberal definition of public

health and safety as these terms are used in the Atomic.

Energy Act.

The history of the 1954 legislation reveals that the Con-

gress, in thinking of the public’s health and safety, had in

mind only the special hazards of radioactivity.’ Moreover,

“*The Senate and House Reports, in contrasting conditions in 1954 with

those when the Atomic Energy Act of 1946 became law, said, “Moreover,

there was little experience concerning the health hazards involved in operating

atomic plants; and this fact was in itself a compelling argument for making

the manufacture and use of atomic materials a Government monopoly. . It

is now evident that greater private participation.in power development “need

not bring with it attendant hazards to the health and safety of the American

people.” Senate Report No. 1699, Vol. 1. Legislative History of the Atomic

Energy Act of 1954, p. 751; House Report No. 2181, id. p. 999.

Very little else on the subject of health and safety can be found in the

massive three volume Legislative History; only four unilluminating references

‘to these words are contained in the index. It seems obvious to us that these

terms were beyond the purview of the 1954 deliberations and that their

meaning had been deemed settled at’ the time of passage of the Atomic

Energy Act of 1946.

In the Senate Report accompanying this earlier legislation, the establish-

ment of an absolute government monopoly of production of fissionable

material was in part justified by the observation that such .production “is

attended by serious hazards to public health and safety. The responsibility

for minimizing these hazards is clearly a governmental function.” Sen. Rep.

No. 1211, U.S. Code Cong. Service, 79th Cong., 2d Sess., 1946, p. 1330. More

clearly, in commenting on § 12 of the Act, granting various kinds of authority

to the Commission, the report described one of the grants as to “Establish

safety and health regulations for the possession and use of fissionable and

byproduct materials to minimize the danger from explosion, radioactivety, and

other harmful or toxic effects incident to the presence of such materials.”:

_ Tbid., p. 1335. Section 12 of the Act was more brief, speaking of “danger

from explosions and other hazards.” /bid., p. 736. We see tio motive other

than one of simplifying language in the delection of “from explosions and

other hazards” in the 1954 legislation.

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we note the very special relationship, crystallized’ in stat-

utory form.between the Commission and the Joint Com-

mittee on Atomic Energy—a relationship that is rarely

embodied in. positive law. 22 U.S.C. § 2252.’ The Joint

Committee, in its first study report, made its focus clear

when it said, “The special problem of safety in the atomic

field is the consequence of the hazards, created by poten-

tially harmful radiations attendant. upon atomic energy

operations.” Joint Committee Print, A Study of Atomic

Energy Commission Procedures and Organization in the

Licensing of Reactor Facilities, 85th Cong., Ist Sess., p.

4 (1957).

The Commission has been consistent in»confining itself

- to these hazards. Its regulations as to licensing and stan-

dards have specified the objective as eliminating radiologi-

cal danger. 10 C.F.R. Parts 20, 70, 100. Its adjudications

‘have been bottomed on a similar concern. See, e.g., Matter

of Consolidated Edison Company, Nov. 24, 1965 (3 AEC

62); Matter of Jersey Central Power and Light Company,

May 6, 1965 (3 AEC 28). Its Rules of Practice have pro-

scribed, as a nonjurisdictional matter, “the thermal: effects

- (as opposed to the radiological effects) of the facility op-

eration on the environment”. 10 C.F.R. Part 2, Appendix

A. III(c)(7). The Joint Committee has not, so far as we

have been led to believe, disapproved of this concept of

the Commission’s concern.

® Under section 2252 the Joint Committee is charged with making cen-

tinuing studies of problems relating to the Commission's work, with receiving

information requested from all government agencies relative to the Com-

mission’s responsibilities, and with receiving all legislative proposals concern-

ing the control of atomic energy. It was this section on which the Supreme

Court placed particular emphasis in Power Reactor Development Co. v. In-

“oa Union of Electrical Workers, 376 U.S. 396, 409 (1961) when

it said: . “eed

“It may often .be shaky business to attribute significance to the

inaction of Congress, but . . . considering especially the peculiar

responsibility and place ‘of the Joint Committee on Atomic Energy

in the statutory scheme, we think it fair to read this history as a

de facto acquiescence in and ratification of the Commission’s licensing

procedures by Congress .. . .

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Subsequent amendments, perfected: and attempted, shed

additional light on the deliniation of scope intended by the

Congress. In 1959 the Congress provided for the Commis- |

sion’s relinquishing to the states control over nuclear ma-

; terials and activities. For the first time the legislation

spoke in. terms of “protection of the public health and

safety from-radiation hazards”. 42 U.S.C. § 2021(b). The

"same statute, 42 U.S.C. § 2021(k) specified that there was

no intent to restrict states or local agencies in regulating

activities “for purposes other than protection against ra-

diation hazards”. In 1965, after Maun v. United States,

347 F.2d 970 (9th Cir. 1965) had held that the Commission

was subject to other agencies, federal, state, and _ local,

concerning the generation, sale, and transmi§sion of elec-

tric power, the Congress amended 42 U.S.C. § 2018 to

make clear that no federal, state, or local agency had any

power of control over activities of the Commission. The

Joint Committee, in its report (S. Rep. No. 390, 89th Cong.,

Ist Sess., p. 4, 1965) said, “. . . AEC’s regulatory control

was limited to considerations involving-the common defense

and security and the protection of the health and .safety

of the public with respect to the special hazards associated

with the operation of nuclear facilities.”

While the referénce to “special hazards” may not be

conclusive, any doubt as to the Congressional meaning dis-

appears when we take note of the unsuccessful prosecution

of a number of bills, including some by members of the

Joint Committee on Atomic Energy, which would have re-

quired the Commission to condition a’ license on confor-

mance to standards relating to thermal effects. All of these

proposals were postponed by, the 90th Congress for fur-

ther consideration. It is obvious that there is a genuine

issue as to whether the Commission or the Department

of the Interior should have jurisdiction to require con-

formance with applicable water quality standards by nu-

clear power facilities. See comments of the Department

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‘of Justice on H.R. 18667 and S. 3851, a on Partici-

pation by Small Electrical Utilities in Nuclear Power be-

fore the Joint Committee on Atomic Energy, 90th Cong.,

2d Sess., Part 2, Appendix 20, at p. 1377.

In short, we conclude that, in enacting the Atomic Energy

Acts of 1946 and 1954, in overseeing its administration,

and in considering .amendments, the Congress has viewed

the responsibility of the Commission. as being confined to

scrutiny of and protection against hazards from radiation.

New Hampshire has sought to bulwark its case by in-

voking the 1965 amendments to the Federal Water Pol-

lution Control Act, 33 U.S.C. § § 466 et seq., and Execu-

tive Order 11288, 31 F.R. 9261, which was subsequently

issued in furtherance of that act as amended. |

Section 466h of the. act, declares the Congressional in-

tent : )

“That any Federal department or agency having

jurisdiction over any building, installation, or

other property shall . . . cooperate with . . . any

State . . . having jurisdiction over | waters into

which ariy matter is discharged from such prop-

erty, in preventing or ans the pollution

of such waters.”

a Hampshire argues that the Commission’s power to

ition, revoké, suspend and modify licenses, 42 U.S.C. |

§ 233-2238, 10 C.F.R. § 50.54, constitutes “having juris-

diction”, éven though the owner and operator of the facil-

ity is a private corporation.

That this language was intended to encompass only in-

stallations owned by and operated for the government,

rather than those subject to the government’s regulatory

powers, is made clear by the legislative history—antece-

B-21 —

dent and subsequent.’ This proprietary interpretation of

jurisdiction is reinforced by consideration of the unsuc-

. cessful attempt in the 90th Congress to broaden ‘the cover-

age of § 466h to include any “federal department or agency

...which . .. issues any lease, license, or permit... for any

activity.” This amendment, S. 3206, sponsored by Senator

Muskie, passed the Senate but was not accepted by the

House during the closing days ofthe Congress for the spe-

cific reason that there was inadequate time to consider

“Tt]he implications of a basic change in Government pol-

icy”».(Remarks of Congressman Clark, House manager

of the legislation, 114 Cong. Rec. H 10000, daily ed., Octo-

ber 14, 1968.) © Fel

Executive Order 11288, addressed to implementing the

Federal. Water Pollution Control Act, supplies no addi-

tional comfort to New Hampshire: It repeats the statutory

objective of maximizing cooperation with the states, § 1

(6), and states that “Water pollution control needs shall

be considered in the initial stages of planning for each

new installation”, § 1(7). But subsequent sections 2-6 re-

fer only- to existing and new federal installations. Only

section 7 goes beyond direct operations in directing agency

and department heads to review loan, grant, and contract.

practices with a view to, detérmining “the extent to which

water pollution contro}’standards similar to those set forth .

in this order for direct Federal operations should be ad-

hered to by borrowers, grantees, or contractors... .” In

the case before us, applicant falls into none of these classes.’

*The conference report, explaining the language. 102 Cong. Rec. 11154,

stated that it applied to “Federal agencies discharging matter into any

waters.” Subsequent provisions added to § 466h in 1961 referred specifically

to “any discharges allegedly contributing. to pollution from any Federal

property” and, in the event of any hearing related to “such discharges,” to -

the giving of notice to “The Federal agency having jurisdiction over the

property.” .

* New. Hampshire asserts that “the nature of the permit and license agree-

ment is clearly contractual in nature.” While the mutual undertaking in such

a license agreement may be “contractual. in nature,” this fact does. not con- -

vert a license into the type of contract for operations envisaged by the

Executive Order. New. Hampshire’s argument that applicant will receive a

feder:.' loan or grant of nuclear material is ‘denied, on a factual basis, by the

Commission, which further observes that 42 U.S.C. § 2061 (dealing with

owrership of government production facilities) is not applicable.

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B-22

We conclude that the licensing board and the Commis-

sion properly refused to consider the proffered evidence

of thermal effects. We do. so with regret that the. Congress

has not yet established procedures requiring timely and

comprehensive consideration of non-radiological pollution

effects in the planning of istallations to be privately

owned and operated. But the very fact that complex ques-

tions of jurisdiction among federal agencies, of federal-

state relations, of procedure, and even of specialized staff

and appropriations must be resolved indicates the inap-

propriateness of any judicial fiat—particularly when the

legislative branch'is actively seised of the problem.

One final issue is raised by New Hampshire’s argument

that the Commission’s action has resulted in a taking of

property—i.e., use of the Connecticut River—from the

citizens of New Hampshire generally without due process

and just compensation and for a private as contrasted to

a public use. The Commission’s response, that the provi-

sional construction permit merely authorizes construction

- of a facility, that it does not authorize the use of water

from the Connecticut River, and that the applicant is not

relieved from any obligation to comply with applicable

state amd federal laws, seems a sufficient one.

Affirmed. =

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