ELR Citation: ELR 20320
No(s). 78-1339 (1st Cir. May 2, 1979)

The court rejects substantive and procedural challenges to a decision by the Administrator of the Environmental Protection Agency to exempt the Seabrook Nuclear Power Plant from applicable thermal discharge limitations pursuant to §316 of the Federal Water Pollution Control Act. After his initial decision was invalidated on procedural grounds, 8 ELR 20207, the Administrator reinstituted hearings on the exemption application. The court finds no error in the Administrator's directive to the Agency staff to take a neutral position in the remanded proceeding. This means of conducting an adjudicatory proceeding is within the Administrator's discretion and has not been shown to have injured the petitioners. Similarly, the Administrator's alleged failure to explain fully every component of his final decision did not directly injure the petitioners' and thus cannot constitute reversible error. With respect to petitioners' substantive challenges, the court finds that there is substantial evidence in the record supporting the Administrator's approval of the location of the cooling system intake pipe, as well as his determinations that the cooling system would not unduly affect indigenous populations of flounder and smelt.

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

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

Counsel for Respondent
Barry S. Neuman, James A. Rogers; Joan Z. Bernstein, General Counsel
Environmental Protection Agency, Washington DC 20240
(202) 755-2511

James W. Moorman, Ass't Attorney General; Bradford F. Whitman, Fred R. Disheroon
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2716

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

Before Coffin, Bownes & Pettine^*, JJ.