SEACOAST ANTI-POLLUTION LEAGUE V. COSTLE
572 F.2d 872 (1st Cir. 1978)
NATURE OF THE CASE: Seacoast (P) appealed a decision by Costle (D) granting a corporation
permission to discharge heated water into estuary.
FACTS: PSCO filed an application with D for permission to discharge heated water into the
Hampton-Seabrook Estuary. The temperature would be 39 degrees F higher than at intake. The
FWPCA, 33 U.S.C. 1311(a), prohibits the discharge of any pollutant unless the discharger,
the point source operator, has obtained an EPA permit. Heat is a pollutant. PSCO applied not
only for a discharge permit but also an exemption from the EPA standards. Under 316(a) a
point source operator who 'after opportunity for public hearing, can demonstrate to the
satisfaction of the Administrator' that the EPA's standards are 'more stringent than
necessary to assure the protection and propagation of a balanced, indigenous population of
shellfish, fish, and wildlife in and on the body of water' may be allowed to meet a lower
standard. Hearings were held in March and April, pursuant to D's regulations establishing
procedures for deciding applications for permits under 402 of the FWPCA. PSCO's
application was eventually denied. PSCO appealed the decision and a new Administrator was
appointed, and he assembled a panel of six in-house advisors to assist in his technical
review. They met and submitted a report finding that with one exception PSCO had met its
burden of proof. The Administrator asked PSCO to submit further information, offered other
parties the opportunity to comment. P did request a hearing, but the Administrator denied
the request. The Regional Administrator's decision was reversed and P appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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