## Facts

- A utility sought to build the Seabrook nuclear generating station and to discharge heated once-through cooling water into the Hampton–Seabrook Estuary and the Gulf of Maine.
- The utility applied for (1) a Clean Water Act § 402 NPDES permit and (2) a § 316(a) variance from thermal effluent limits, asserting the discharge would still protect a balanced indigenous aquatic population.
- Environmental organizations requested a public adjudicatory hearing on the § 316(a) variance.
- An EPA administrative law judge conducted hearings and developed a record; the EPA regional administrator denied the application.
- On internal appeal, the EPA Administrator reversed and granted the § 316(a) variance, relying in part on additional technical material and internal technical review not subjected to the hearing process.
- The environmental organizations petitioned for judicial review of the Administrator’s final action under 33 U.S.C. § 1369(b)(1).

## Issues

1. Whether the Clean Water Act’s requirement of a “public hearing” for a § 316(a) thermal variance requires an “on the record” hearing governed by APA formal adjudication provisions (5 U.S.C. §§ 554, 556, 557).
2. Whether the EPA Administrator’s process complied with APA requirements that material evidence be taken on the record with adequate opportunities to test disputed facts.
3. Whether the Administrator could rely on a technical review panel report and other extra-record materials without reopening the record for adversarial testing.

## Decision

- The court held that § 316(a)’s “public hearing” requirement triggers APA formal adjudication and therefore requires an on-the-record hearing.
- The court held that EPA’s procedures were deficient because the Administrator relied on technical materials outside the hearing record without providing a fair opportunity to challenge them.
- The court vacated the Administrator’s approval of the § 316(a) variance and remanded for further proceedings consistent with APA formal hearing requirements.

## Legal Principles

- When a statute calls for a “hearing” connected to an agency determination resolving disputed adjudicative facts about specific parties, courts may treat the statute as requiring an APA on-the-record proceeding absent strong contrary indications.
- Clean Water Act § 316(a) variance determinations are fact-intensive and site-specific, making record-based decisionmaking and structured participation necessary for judicial review.
- In APA formal adjudication, the agency’s decision must be based on the hearing record; material extra-record information cannot support the outcome without being introduced through procedures that permit rebuttal.
- Where disputed, material technical facts control the outcome, the hearing process must provide meaningful opportunities to probe and test evidence, including cross-examination when necessary.
- If the agency wishes to consider additional evidence after the initial hearing, it must reopen the record in a manner that gives affected parties a fair chance to participate.

## Conclusion

The court required EPA to treat § 316(a) thermal variance proceedings as APA formal adjudications, vacating the granted variance because the Administrator relied on extra-record technical materials without adequate record-based procedures and remanding for an on-the-record hearing and decision grounded exclusively in the developed record.


Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978)