Society for the Protection of New Hampshire Forests v. Site Evaluation Committee

337 A.2d 778, 115 N.H. 163, 1975 N.H. LEXIS 251
CourtSupreme Court of New Hampshire
DecidedApril 23, 1975
DocketNo. 6755
StatusPublished
Cited by36 cases

This text of 337 A.2d 778 (Society for the Protection of New Hampshire Forests v. Site Evaluation Committee) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Society for the Protection of New Hampshire Forests v. Site Evaluation Committee, 337 A.2d 778, 115 N.H. 163, 1975 N.H. LEXIS 251 (N.H. 1975).

Opinion

Kenison, C.J.

The Society for the Protection of New Hampshire Forests and the Audubon Society of New Hampshire (hereinafter the Societies) appeal from the decision of the site evaluation committee, a State administrative agency, approving the location of a nuclear generating facility in Seabrook, New Hampshire. RSA 162-F: 10 (Supp. 1973) (Review; Electric Power Plant Siting and Construction Procedure); RSA 541:6. In his role as representative of the public interest the attorney general, who participated in the hearings before the committee, joins in the appeal. RSA 162-F:9 (Supp. 1973). The issues presented are: (1) whether the Societies were denied their constitutional and statutory rights by the committee’s admitting certain evidence allegedly without providing for either cross-examination or rebuttal (U.S. Const, amend. XIV; RSA 162-F:7 I (Supp. 1972), as amended, (Supp. 1973)); (2) whether in violation of the requirements of RSA ch. 162-F (Supp. 1973) the committee subdelegated its duty to ascertain the impact on water quality by the proposed facility’s discharge of cooling water; and (3) whether the findings of the committee are legally sufficient.

On February 1, 1972, the Public Service Company of New Hampshire filed with the public utilities commission an application for a “certificate of site and facility”, permitting construction of two 1100 megawatt nuclear generating units in Seabrook. RSA 162-F: 6 I (Supp. 1973). A properly constituted “bulk power supply site evaluation committee”, including representatives of the State agencies concerned, was activated to consider the Seabrook location. RSA 162-F:2 II (Supp. 1973), :3 (Supp. 1973).

After publishing notice on April 3, 1972, the commission and the site evaluation committee promulgated rules to govern the joint public hearings on the application, including provision for the cross-examination of witnesses (Rule 7). RSA 162-F.-7 I (Supp. 1972), as amended, (Supp. 1973); RSA 162-F:7 VI (Supp. 1973). Pursuant to rules 4 and 8, the Societies and the Seacoast Anti-Pollution League were permitted to participate generally in the proceedings. The plaintiff Societies intervened primarily because of their concern “with suitability of the site from an environmental point of view ....”

During the hearings which commenced on June 19, 1972, a major issue was construction of the cooling system for the reactors. In the nuclear fuel cycle a large volume of cooling water is required for the condenser which converts steam generated as a result of nuclear fission into water. Cooling water may be provided through a “closed system” in which water is reused after exposure to the [166]*166air or through a “once-through system” in which the water may or may not be cooled before being returned to its source. Electricity and the Environment, A Report of the Association of the Bar of the City of New York 40 (1972).

The Seabrook proposal located the nuclear generating facilities on an area known as “ The Rocks”, adjacent to the HamptonSeabrook salt marsh and about two miles from the Atlantic Ocean. To furnish sufficient cooling water (i.e. 364,000 gpm for each 1100 megawatt unit), the Public Service Company initially proposed a once-through system requiring installation of four buried conduits leading into the ocean, each nine feet in diameter. Construction of the conduits would have entailed excavation of a trench fifty feet wide through the salt marsh and building a pump house within Hampton Beach State Park. An intake apparatus for carrying cooling water through the pipes was to have been constructed underwater at a point about 4000 feet off Hampton Beach. The water heated as a result of passing through the condenser was to have been discharged through the pipes to a point 6000 feet offshore.

In the course of circulating through the system, ocean water would be heated as high as 45 0 F. above the ambient receiving water temperature. It was not disputed during the hearings that living organisms could not survive passing through the condenser due to the rise in temperature and extreme pressures. The original proposal raised recognized environmental hazards, including potentially irreparable destruction to the salt marsh caused by the excavation of trenches, damage to ocean biota caused by discharge of heated water (as well as of chemically treated water to prevent fouling of the system), and killing of organisms taken into (i.e. “entrained” by) the condenser cooling system. See 1 F. Grad, Environmental Law § 3.01, at 3-18 (1973); Bloch, Nuclear Power Plant Proliferation, 2 Environmental Law 373, 406 (1972). But see Merriman, The Calefaction of a River, 222 Scientific American 42, 52 (May 1970).

On March 8, 1973, in response to criticism of burying conduits in the salt marsh, the Public Service Company indicated that it was exploring the possibility of constructing two bedrock tunnels underneath the marsh and the ocean to carry the cooling water. Although the intake and discharge structures remained unchanged in the tunnel scheme, the necessity of trenching through the salt marsh was eliminated and the pump house was relocated from the public beach to the reactor site.

[167]*167Two months later on May 21, 1973, the company announced that it had decided to use bedrock tunnels. Neither counsel for the Societies nor counsel for the public was present at the session since they had been advised that the two final hearings were reserved for committee questioning only. At the request of counsel for the Seacoast Anti-Pollution League, the committee ordered the Public Service Company to submit a detailed memorandum explaining how the tunnels would be installed and it was agreed that the intervenors would be allowed time to submit written interrogatories on the tunnel proposal. On the same day the committee digressed from its schedule to consider direct testimony and cross-examination of an expert on the feasibility of constructing tunnels for the Seabrook plant.

The proceedings of the site evaluation committee ended on May 25, 1973, after thirty-two days of hearings spread over almost one year during which 120 witnesses and statements were received (comprising about 5800 pages of testimony) together with 200 exhibits of approximately 3000 pages. Pursuant to the committee’s order, the Public Service Company submitted a written report regarding construction of the tunnels. In closing the hearings the committee noted that the intervenors were allowed seven days to submit interrogatories on the tunneling scheme and that seven days would be allowed the company to respond.

The site evaluation committee issued a final report approving the application on July 27, 1973. See RSA 162-F:8 I (Supp. 1972), as amended, (Supp. 1973). The committee denied the Societies’ motion for rehearing. RSA 162-F:10 (Supp. 1973); RSA 541:3. A “certificate of site and facility” incorporating the report of the site evaluation committee as well as reports of the water supply and pollution control commission, the air pollution control commission and two other State agencies affected, was issued by the public utilities commission on January 29, 1974. See RSA 162-F:8 I (a) to (d) (Supp. 1973).

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Bluebook (online)
337 A.2d 778, 115 N.H. 163, 1975 N.H. LEXIS 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/society-for-the-protection-of-new-hampshire-forests-v-site-evaluation-nh-1975.