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Public Interest Research Group of New Jersey Inc. v. State

Decided: July 11, 1977.

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., DAVID CACCIA, AND THE SUN PEOPLE -- ALTERNATE ENERGY ADVOCATES, INC., APPELLANTS,
v.
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND PUBLIC SERVICE ELECTRIC AND GAS COMPANY, RESPONDENTS



Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D. Kole, J.A.D. (concurring).

Larner

[152 NJSuper Page 198] This is an appeal from the determination of the Coastal Area Review Board (Board) affirming the issuance of a permit to Public Service Electric and Gas Company (PSE&G) and Atlantic City Electric Company*fn1 to construct a nuclear plant for generation of electrical power. Such a permit is a prerequisite to construction of the facility since the site is located within the boundaries of the "coastal area" delineated in the Coastal Area Facility Review Act (CAFRA -- N.J.S.A. 13:19-1 et seq.). See Toms River Affiliates v. Dept. of Environm. Protection , 140 N.J. Super. 135 (App. Div. 1976), certif. den. 71 N.J. 345 (1976).*fn2 The act is administered by the Department of Environmental Protection of the State of New Jersey through its Commissioner, who issued the permit pursuant to his statutory authority. An appeal to the Board pursuant to N.J.S.A. 13:19-13 resulted in an affirmance, from which the appeal was taken to this court.

The project is to be known as Hope Creek Generating Station Units 1 and 2, consisting of a two-unit power plant on Artificial Island on the east bank of the Delaware River in Salem County. The island, which in reality is a peninsula, was created by dredging and filling commencing in the early part of this century. It consists of a strip of land one mile wide and three miles long which is best characterized as tidal marsh and meadowlands. The site is zoned for industrial use, with the surrounding area undeveloped and the nearest residence in all directions approximately three miles distant. There are also two other nuclear units at the site, one in use and one in the process of construction, known as Salem Electric Generating Station, which were developed prior to the effective date of CAFRA and thus exempt from its application. See N.J.S.A. 13:19-5.

The Hope Creek project had its genesis in an initial application in 1970 by PSE&G to the Federal Atomic Energy Commission*fn3 for a construction permit at a site on Newbold Island in the Delaware River. After considerable investigation and study, NRC recommended to PSE&G in 1973 that Artificial Island would be a more suitable site for the plant because of considerations of population density. As a consequence, an amended application was filed changing the location of the station to Artificial Island.

Thereupon, NRC undertook an exhaustive review of the application pursuant to its functions under applicable federal statutes and regulations, evaluating the documentation submitted by the applicant as well as independent calculations and studies by NRC's staff of experts, accompanied by mandated public hearings. Pursuant to federal requirements

NRC, through its Directorate of Licensing, filed an exhaustive scientific analysis and report of all the criteria relevant to the proposed nuclear power plant at the site in question in the form of a Final Environmental Statement. Ultimately NRC granted a construction permit on November 4, 1974, subject to certain conditions to be met prior to the issuance of an operational permit. Essentially, NRC found that no significant adverse environmental impacts would occur from normal operational releases of radioactivity from the nuclear units at the site, from the potential occurrence of accidents at the plant or from transportation of radioactive material. NRC concluded that "the proposed facilities can be constructed and operated at the proposed location without undue risk to the health and safety of the public" and "[t]he issuance of permits for construction of the facilities will not be inimical to the common defense and security or to the health and safety of the public."

One of the conditions of the NRC order was that no concrete be poured for the structures until further approval after a staff study of possible interaction between river traffic hazards from liquefied natural gas tankers and safety-related plant features. Subsequently the matter was studied and analyzed by the NRC staff, which concluded that the condition which stayed construction had been satisfied. Thereafter intervenors, represented by the Public Advocate of New Jersey and other counsel, were admitted to this proceeding and an evidentiary hearing was held by the Atomic Safety and Licensing Board of NRC.

Subsequent to such hearing the NRC Licensing Board filed a comprehensive supplemental decision and order on March 28, 1977, concluding that there was no need for design change because of alleged risks of accidents caused by river traffic relating to tanker transportation of liquefied natural gas. The Board also concluded that because the environmental risk of a river accident was so remote and speculative, no further supplemental environmental statement was warranted. In addition, the decision undertakes to answer

other objections relating to safety factors involving unanticipated occurrences within and around the plant. As a result of this supplemental study and hearing, the condition staying construction was removed.*fn4

We note that in addition to construction approval by NRC, PSE&G has gone through the gamut of applications to and approvals by a host of other federal and state agencies having jurisdiction over various facets of the environment potentially affected by the proposed project. Among these agencies are the United States Army Corps of Engineers, United States Environmental Protection Agency, United States Department of Transportation, Federal Aviation Authority, Delaware River Basin Commission, New Jersey Department of Labor and Industry, the New Jersey Department of Environmental Protection, particularly the Division of Water Resources and Environmental Quality and the Bureaus of Air Pollution Control and Radiation Protection.

PSE&G filed its CAFRA application in February 1974, including with its submission the Environmental Impact Statement prepared by the Directorate of Licensing of NRC. The application was found to be insufficient by the State Commissioner of Environmental Protection and accordingly additional information was submitted by the applicant. Pursuant to N.J.S.A. 13:19-8, the Commissioner declared the application to be complete and accepted it as filed. Two public hearings were then held on August 14, 1974 and May 23, 1975 by a hearing officer of the Department. None of the appellants was present or represented at the first hearing, while Mr. David Caccia and Mrs. Ruth Fisher of the Cape May County Isaak Walton League of America appeared in opposition to the application at the second hearing.

The hearing consisted of an informational proceeding, with the opportunity given to all interested parties to express their views on the application.

Thereafter, based upon all documentary data, the transcript of the hearings, the expertise of the Commissioner and his staff, the scientific studies of NRC and other scientific information and analyses, the Commissioner filed a thorough and comprehensive opinion which reviewed the facts and criteria relevant to permit approval under CAFRA and found that there was sufficient compliance with all the legislative requirements for issuance of a permit as contained in N.J.S.A. 13:19-10 and 11.

Accordingly, he approved the issuance of a construction permit, subject to certain conditions which will be discussed later in this opinion. The Commissioner's opinion also outlined review procedures of appeal available to any aggrieved party: (1) to the Coastal Area Review Board with the review restricted to policy matters, or (2) a plenary (quasi -judicial) hearing before a hearing officer appointed by the Commissioner to make findings of fact, conclusions of law and recommendations to the Commissioner. Although appellant Public Interest Research Group of New Jersey, Inc. (PIRG) did not participate in the proceeding up to that point, it opted for the policy review and filed a notice of appeal to the Board. Two other interested parties filed an appeal from the Commissioner's decision to the Board by letter, followed by a similar appeal by the Public Advocate of New Jersey.

After briefs and oral arguments the Board on January 20, 1976 unanimously affirmed the Commissioner's decision to grant the permit, which was formally issued on February 1, 1976. PIRG, The Sun People -- Alternate Energy Advocates, Inc. and David Caccia appeal from the determination of the Board, and the Public Advocate appears amicus curiae in opposition to the decision below. PSE&G and the Coastal Area Review Board appear as respondents in support of the Board's decision.

In our review of this administrative decision we are necessarily limited to a narrow function, namely, to determine whether there is sufficient evidence in the record as a whole to justify the determination reached below. Such a limited scope of review is particularly significant in this area of highly technical and scientific knowledge, wherein a court must accord a high degree of deference to the administrative agency and its expertise. For an interesting discussion of the judicial role in reviewing environmentally-related administrative decisions see the opinions in Ethyl Corp. v. Environmental Protection Agcy. , 176 U.S. App. D.C. 373, 541 F.2d 1 (D.C. Cir.) (en banc), cert. den. 426 U.S. 941, 96 S. Ct. 2662, 49 L. Ed. 2d 394 (1976). See also, American Paper Inst. v. Train , 177 U.S. App. D.C. 181, 543 F.2d 328, 338 (D.C. Cir.), cert. dism. 429 U.S. 967, 97 S. Ct. 398, 50 L. Ed. 2d 335 (1976); Shahmoon Indus., Inc. v. Dept. of Health, N.J. , 93 N.J. Super. 272 (App. Div. 1966). And if the record reasonably supports the conclusion below, the court must presume the validity of the analysis made by those having the expertise and training relevant to the subject matter involved.

Appellants advance the following grounds for reversal of the determination below:

(1) Failure of the Commissioner to afford a trial-type adversary hearing with all traditional rights of due process inherent therein invalidates the conclusion granting the permit;

(2) The Commissioner did not have the authority to issue a conditional construction permit subject to further compliance and further permits in the future;

(3) There is insufficient evidence in the record relating to the disposition of radioactive waste in the form of spent fuel rods so as to justify the issuance of the permit;

(4) The environmental impact statement filed by the applicant was fatally inadequate in that it failed to consider alternative methods of generating electricity without the construction of a nuclear power plant.

The argument of amicus concentrates upon the insufficiency of the Environmental Impact Statement filed by

PSE&G, urging a reversal to require the applicant to renew the process by filing an amended Environmental Impact Statement which will specifically relate to energy conservation as an alternative to the need for construction of the nuclear power plant. In support of its position, amicus has submitted to us a "Study of Electrical Energy Usage in the Public Service Electric & Gas Co. Service Territory, State of New Jersey", dated June 30, 1976, prepared by Dubin-Bloome Associates, Energy Management Consultants, in connection with a rate case. This study was not before the Commissioner or the Board and was therefore not considered by them in arriving at a conclusion.

A motion to strike this exhibit from the appellate record, made by respondents, was reserved for decision after the consideration of this appeal.

Since our function is to review the administrative decision based upon the record made before the agency rendering that decision, we cannot and should not undertake to evaluate the propriety of the determination on appeal by a consideration of evidential material not presented to the designated administrator having the expertise to decide the issue in the first place. See R. 2:5-4 and 5. Such permissiveness would destroy the essence of the appellate process. We conclude that the submission of this exhibit as an expert's opinion at this late date is wholly unwarranted and that the motion to strike should be granted. This study therefore has not been considered by us in our determination of the merits of the appeal.

I.

Appellants urge that the hearing contemplated by CAFRA (N.J.S.A. 13:19-9(a)) and the provisions of the Administrative Procedure Act (N.J.S.A. 52:14B-10(a)) is an adversarial hearing including cross-examination of witnesses and findings of fact and conclusions of law limited to the record evidence. The hearings below were in fact not conducted in the form of a trial, witnesses were not sworn, and

parties were advised that cross-examination would not be permitted. In substance, all interested persons were given the opportunity to present their positions orally and in writing for the purpose of adding to the information and data available to the Commissioner in evaluating the application and deciding whether or not to grant the permit. It was thus a quasi-legislative hearing rather than an adversary hearing with the normal trappings of a full-blown trial.

The Administrative Procedure Act mandates a trial-type hearing in contested cases. N.J.S.A. 52:14B-10(a). A "contested" case within the meaning of that section is defined as:

52:14B-2(b):

"Contested case" means a proceeding, including any licensing proceeding, in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or disposing of their interests, after opportunity for an agency hearing.

It is apparent from the foregoing that the guarantee of a full adversary trial is reserved for those cases in which the legal rights and duties of "specific parties" are at issue and required to be determined by a decision disposing of their interests because of "constitutional right" or "statute." Since the objectors-appellants have no "particularized property rights or other special interests" which can be affected by the administrative determination, they are not entitled to a true adversary hearing either on a constitutional due process basis or as a matter of "fundamental fairness" and "administrative due process."*fn5 See Cunningham v. Civil Service Dept. , 69 N.J. 13, 24-26 (1975).

As observed by Justice Schreiber in Cunningham:

The crucial questions are whether the fact finding involves a certain person or persons whose rights will be directly affected, and whether the subject matter at issue is susceptible to the receipt of evidence. [at 22]

If the appellants herein have no constitutional right to an adversary proceeding, the quoted section of the Administrative Procedure Act (N.J.S.A. 52:14B-2(b)) would require a statutory guarantee of such a hearing. The pattern and purpose of the CAFRA legislation lead to the conclusion that the Legislature intended that the hearing held by the Commissioner in conjunction with the application for a construction permit be informational in nature in order to permit members of the public to present their views and relevant data as an aid to the administrative decision on the particular application as well as long-term planning policy for the entire Coastal Area.

N.J.S.A. 13:19-9 provides:

Hearing; submission of additional information

a. The commissioner, or a member of the department designated by him, shall hold a hearing to afford interested parties standing and the opportunity to present, orally or in writing, both their position concerning the application and any data they may have developed in reference to the environmental effects of the proposed facility.

Merely because the duty is imposed on the agency to receive and consider evidence in connection with a hearing provided for in the statute, it does not per se signify that the hearing is to be of the trial type. See In re Matter of Public Hearings , 142 N.J. Super. 136, 151 (App. Div. 1976). There is no affirmative reference in this statute applicable to this proceeding which mandates a trial-type hearing as prescribed by the Administrative Procedure Act.

Other facets of the legislative scheme also point to the inappropriateness of a full-blown trial ...


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