Seacoast Anti-Pollution League v. Costle

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Seacoast Anti-Pollution League



Procedural History

The case is now at the United States Court of Appeals for the first circuit.


  • The Public Service Company of New Hampshire (PSCO) filed an application with the EPA to discharge heated water into the Gulf of Maine
  • Section 301(a) of the FWPCA prohibits this unless PSCO can obtain a EPA permit
  • Since the discharge did not meet EPA regulations, PSCO filed for an exemption under section 316 of the FWPCA which says that after an opportunity for a public hearing, PSCO can receive the exemption if they can demonstrate that EPA regulations are more stringent than necessary.
  • In January 1975 the Regional Administrator of the EPA held a non-adjudicatory hearing and authorized PSCO's application.
  • At Plaintiff's request, hearings were held in Marcha and April of 1976 as per procedures defined in section 402 of the FWPCA. An administrative law judge certified these hearings as on the record and as a result of the hearings, on November 1976 the Regional Administrator reversed his original determination and denied PSCO's application.
  • PSCO appealed this decision to the Administrator (via 40 C.F.R. Section 125.36(n)). A new administrator was appointed who assembled a panel of six in house advisors to assist in his technical review.
  • This panel met twice in 1977 and submitted a report that PSCO had met its burden with one exception and told PSCO is could file more information with the panel. It also said that either party could ask for a hearing.
  • Plaintiff asked for a meeting and was denied.
  • PSCO filed more information and with this information the Administrator reversed its the decision of the Regional Administrator.


The defendant first claims that the APA does not apply because section 554(a) says that this section applies to "every case of adjudication required by statue to be determined on the record." Both section 316(a) and section 402(a)(1) of the FWPCA provide for public hearings but neither say anything about "on the record." However, the court decided that this was the exact type of case the APA had in mind; a hearing would be necessary to protect the public's rights. The court says that it is willing to presume that, "unless a statute otherwise specifies, an adjudicatory hearing subject to judicial review must be on the record." For this reason the court decides that sections 554, 556, 557 of the APA apply.

First plaintiff argues that the Administrator could not rely on information that PSCO submitted directly to the him. The court first ruled that the Administrator is allowed to take more evidence because 5 USC Section 557(b) says that it had "all the powers which it would make in the initial decision." The court ruled that the method for gathering the data was not proper. Even though the APA says that for initial licensing cases new evidence can be submitted in written form. However, the specific rules of this statute (FWPCA), requires a public hearing. The specific statute trumps in these cases.

Second the plaintiff argues that the Administrator should have allowed the ability to cross-examine witnesses. The court rules that an adjudicatory hearing does not have an absolute right to cross-examine witnesses. 5 USC Section 556(d) limits cross-examination when "required for a full and true disclosure of the facts." The court orders a remand for the Administrator to determine if the cross would be useful.

Third, the plaintiff argues that the Administrator should not have sought help of the technical panel. EPA regulations says that the decision should be made by the Administrator. The court rules that this is a poor argument because the point of administrative agencies is to allow people in administrative positions to get technical advice about certain issues. Even if he got help, the final decision is the Administrators.

Fourth, the plaintiff argues that the technical panel did not merely analyze the evidence on the record, but it added to it. The ruled that this is a violation of 5 USC Section 556(e). The court rules that the conclusion was not directly supported by the record unless supplemented. Therefore, the case is remanded back to the administrator.