2011-381, Appeal of Town of Seabrook

The petitioner, Town of Seabrook, appeals an order of the New

Environmental Services.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

attorney general, on the brief), for the New Hampshire Department of Michael A. Delaney, senior assistant

and Mr. Block orally), for the respondent, NextEra Energy Seabrook, LLC. Pierce Atwood, LLP & a. on the brief,

to press. Errors may be reported by E-mail at the following address: brief, and Mr. Ciandella orally), for the petitioner, Town of Seabrook.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 11. Radioactive Gaseous Waste System 10. Vent Stack 9. Containment On-Line Purge Exhaust System 8. Waste Processing Building Exhaust System 7. Fuel Storage Building Exhaust System 6. Primary Auxiliary Building Filtered Exhaust System 5. Containment Enclosure [and Fission Product Removal System] 4. Combustible Gas Control System 3. Containment Cooling System 2. Containment Spray System 1. Containment Structure

Air Pollution Control Facilities:

following facilities are entitled to the exemption:

duplicative of the prior application. NextEra specifically claimed that the exemptions be updated. NextEra’s Application (Application) was largely Hampshire Department of Revenue Administration requested that the

DES to obtain tax exemptions for the Plant, in part because the New In 2010, pursuant to this statute, NextEra submitted an application to

RSA 72:12-a, I.

provisions of this section. device, appliance, or installation is used in accordance with the under this chapter for the period of years in which the facility,

in accordance with this section, exempted from the taxes levied

real estate necessary therefor, or a percentage thereof determined

pollution shall be entitled to have the value of said facility and any reducing, controlling, or eliminating any source of air or water appliance, or installation wholly or partly for the purpose of

exemptions pursuant to RSA 72:12-a.

or places in use in this state any treatment facility, device,

In 1982, a previous owner of the Plant applied for local property tax

Any person, firm or corporation which builds, constructs, installs

provides the following:

discharged to the Atlantic Ocean via intake and discharge tunnels. turbine generator. The water used during this process is drawn from and

various tax exemptions. The relevant tax exemption statute, RSA 72:12-a, Public Serv. Co. of N.H., 124 N.H. 79 (1983). The Plant ultimately received followed. See Appeal of Town of Hampton Falls, 126 N.H. 805 (1985); Appeal of

electricity, the Plant uses nuclear fuel to create steam that is used to power a generating facility with a four-loop, pressurized water reactor. To produce p. 3 The Town has appealed this decision to us. See

eligible for the exemption under RSA 72:12-a. ruling that all of the aforementioned facilities are, at least to some extent,

adjudicative proceeding. In the spring of 2011, DES issued a lengthy order

any of the Town’s filings on the basis that the 2010 Application was a non- Determinations. NextEra filed responses. DES, however, declined to rule on DES Review of NextEra’s Application Based Upon Prior Tax Exemption

narrow.” Appeal of Town of Bethlehem “The scope of our review of agency decisions under RSA 72:12-a is

process.

Town of Seabrook’s Petition to Deny NextEra’s Requested Exemptions or Limit

Petition for Intervention, Town of Seabrook’s Motion for Reconsideration, and comments on the Application. It also filed the following: Town of Seabrook’s DES declined to conduct a public hearing. The Town submitted

hearing; (4) that NextEra’s claims are barred by res judicata, collateral evidence to support DES’s decision; (3) that DES was required to hold a meet the requirements of RSA 72:12-a; (2) that there was not sufficient 24 (2008). Bearing this in mind, we address each issue in turn. or unreasonable. RSA 541:13 (2007); Appeal of Town of Rindge, 158 N.H. 21, party shows by a clear preponderance of evidence that DES’s decision is unjust overturn DES’s decision only if it committed an error of law, or if the appealing provide it with sufficient information to evaluate the Application., 154 N.H. 314, 318 (2006). We will

argues: (1) that DES erroneously granted exemptions for facilities that do not

public hearing on the Application. The Town also alleged that NextEra failed to could submit comments on the Application. The Town asked DES to conduct a In December 2010, DES notified the Town of Seabrook (Town) that it

21. Demineralizer Regeneration Waste Neutralization System 20. Service Water Cooling Tower 19. Boron Recycle System 18. Steam Generator Blowdown Treatment System 17. Radioactive Liquid Waste System 16. Circulating Water Intake Tunnel 15. Circulating Water Discharge Tunnel 14. Sanitary Waste System 13. Chemical and Oily Waste System 12. Storm Water Run-Off and Treatment System

Water Pollution Control Facilities: p. 4 “for the period of years in which the facility . . . is used

points to the language in RSA 72:12-a, I, that states the exemption is available

years when they are actively used. To support its interpretation, the Town the Town, the facilities would, however, be entitled to the exemption in the standing by and [are] not actually being used to treat pollution.” According to

from an extraordinary disaster or emergency . . . when those [facilities are]

“which might be used at some point in the future to control pollution resulting because the plain language of the statute precludes exemptions for facilities The Town argues that these facilities are not eligible for the exemption

control purpose. structure and are entitled to the exemption to the extent they serve a pollution system, DES ruled that they are integral components of the containment

system, the containment cooling system, and the combustible gas control

control” and is entitled to a 100% exemption. As to the containment spray

product removal system was “installed for the sole purpose of air pollution an 87% exemption. It determined that the containment enclosure and fission containment structure has a partial pollution control purpose and is entitled to

interpretation” of the statutory term “treatment.” It determined that the

removal system are treatment facilities, relying on what it called our “broad the containment structure and the containment enclosure and fission product containment enclosure and fission product removal system. DES ruled that

improve the quality of the thing undergoing treatment.” Appeal of City of some action or process with a special end in view, the end often being to of “treatment,” which we have interpreted as “the subjection of something to

containment cooling system, the combustible gas control system, and the

accordance with the provisions of [RSA 72:12-a].” Id To satisfy the first requirement, the facility in question must perform some sort provides that the exemption is available for as long as the facility “is used in any source of air or water pollution,” RSA 72:12-a, I. The statute additionally

which include the containment structure, the containment spray system, the (LOCA). Nevertheless, DES ruled that the exemption applies to these facilities, they were designed to operate only in the event of a loss-of-coolant accident Some of the facilities at issue do not operate on a regular basis because

exemption (1) if it is a treatment facility and (2) if its purpose is, at least requires the facility to have the “purpose of reducing, controlling, or eliminating Pursuant to the text of RSA 72:12-a, I, a facility is eligible for a tax Country Envtl. Servs. v. State of N.H., 157 N.H. 15, 21 (2008), it nevertheless virtually any other criteria relative to the pollution control [facility itself],” N. although the statute is not concerned with the “size, shape, effectiveness, or Berlin, 131 N.H. 285, 290 (1988). With regard to the second requirement,

I. RSA 72:12-a operate only in the event of rain. See

p. 5 the exemption applies to storm water management systems – systems which facilities through tax exemptions. See

For example, it points to two cases in which we upheld DES orders ruling that continuous use is not required to qualify for the exemption under RSA 72:12-a. which we have held is to encourage the construction of pollution control operation.” According to NextEra, our case law demonstrates that active,

current language. See years.” RSA 72:12-a, I (1991). In 1998, the legislature replaced it with the

Town’s interpretation of the statute is inconsistent with its underlying purpose, must be, deployed in place and ready as long as the [P]lant itself is in and the statute would have no application.” Lastly, NextEra argues that the interpretations of the terms of RSA 72:12-a . . . are entitled to great deference.” small enough component parts, no part could individually control pollution

a is entitled to deference. It relies on Appeal of Town of Hampton Falls interpret its language. NextEra argues that DES’s interpretation of RSA 72:12-

NextEra also asserts that the facilities “are ‘used’ because they are, and primary responsibility to administer RSA 72:12-a . . . [and thus DES’s] interpretation of the statute would defeat its purpose because “broken into the exemption to facilities or systems that continuously treat pollution.”

Faced with this disagreement over the meaning of RSA 72:12-a, we must

argues that the “is used” clause does not support the Town’s position. That NextEra disagrees with the Town’s construction of the statute. It first

as a safety mechanism in the event of a LOCA. N.H. at 809, in which we said that “the legislature has entrusted [DES] with term “facilities” encompasses the facilities’ integral parts and that the Town’s, 126 evidence that the legislature enacted this change to “restrict the applicability of

at 323.

because their purpose is not to control or eliminate pollution, but rather to act Town argues that some of the facilities are not entitled to the exemption to the Town’s argument about integral components, NextEra argues that the In its view, each component part must meet the statutory test. Finally, the added to alter the time limitation on the exemption, and that there is no 320-21; Appeal of Town of Newington, 149 N.H. 347, 351 (2003). With regard

does not provide the exemption for integral components of treatment facilities. legislative history, NextEra argues that the “is used” language was merely The Town further contends that, contrary to DES’s ruling, the statute Laws 1998, ch. 66 (effective April 1, 1998). Relying on

inconsistent with the statutory term “treatment.”

exemption available in years in which a facility is not actively used would be provisions of this section.” In the same vein, the Town argues that making the parameters of the statutory term “treatment facility.” We hold that they do not.

p. 6 containment enclosure and fission product removal system fall within the event. Our first task is to determine if the containment structure and the facilities that will only treat pollution upon the occurrence of a non-routine

whether the plain language of RSA 72:12-a precludes the tax exemption for

conditions, such as a LOCA. The ultimate interpretive question, then, is released to the atmosphere during and subsequent to abnormal operating collect, contain, and process airborne contaminants that would otherwise be 6

The deference afforded, however, is not absolute. Appeal of Weaver

NextEra has described all of the facilities in question as facilities that

language is clear and unambiguous. Id

to the words used. Appeal of Town of Rindge

express statutory language, Appeal of Stanton

legislature might have said or add words the legislature did not include. Id.

beyond the language of the statute to determine legislative intent if the administration is entitled to deference. See, 158 N.H. at 24. We do not look our case law that an interpretation of a statute by the agency charged with its When we interpret a statute, we ascribe the plain and ordinary meaning Regardless of the distinctions among these cases, it is well established in deference.”). it is plainly incorrect, Appeal of Levesque, 136 N.H. 211, 213 (1992).

administration is entitled to substantial deference.” (quotation omitted)); N.H. we will not defer to an agency’s interpretation if it clearly conflicts with the of a statute de novo. Appeal of Town of Rindge, 158 N.H. at 24. Furthermore, Appeal of Weaver, 150 N.H. at 256. We thus review an agency’s interpretation N.H. at 24, and we are not bound by an agency’s interpretation of a statute, see the words of the statute considered as a whole, Appeal of Town of Rindge statute it administers] . . . .”); Appeal of Weaver, 158 at 256. We are still the final arbiter of the legislature’s intent as expressed in

a statute by those charged with its administration is entitled to substantial Retirement System v. Sununu, 126 N.H. 104, 108 (1985) (“[T]he construction of

207, 219 (1991) (“[T]he construction of a statute by those charged with its substantial deference . . . .”); Appeal of Salem Regional Med. Ctr., 134 N.H. (“[S]tatutory construction by those charged with its administration is entitled to

76, 78-79 (2008) (“[W]e accord deference to the [agency’s] interpretation [of the

the legislature’s intent as expressed in the words of [RSA 72:12-a].” Bethlehem, 154 N.H. at 319, in which we said that “we are the final arbiter of an agency’s interpretation of a statute de novo,” and Appeal of Town of on Appeal of Town of Rindge, 158 N.H. at 24, in which we said that “we review The Town argues that we need not give DES’s interpretation deference. It relies can be said with certainty is that these facilities have the potential

p. 7 events that would actually trigger their operation. Thus, the only thing that

LOCA, and presumably the Plant operators seek to avoid the catastrophic would operate only in the event of abnormal operating conditions, such as a necessary for the normal operation of the Plant.” Indeed, these two facilities

fission product removal system “do not include any elements that are

stated that the containment structure and the containment enclosure and equipment from the natural elements, in its Application NextEra unequivocally bounds of the statutory term “treatment facility.” Accordingly, we hold that the operate to treat anything. Although the containment structure does protect

Appeal of City of Berlin

responsive safety systems; their speculative nature puts them outside the or the containment enclosure and fission product removal system will ever something in the case of an accident. The facilities, therefore, are more akin to Here, it is merely speculation whether either the containment structure Appeal of Town of Newington to treat considered a “treatment facility” it must regularly operate. water used in the electricity generation process). In short, for a facility to be

the exemption only for facilities which operate on routine intervals. See Furthermore, this is not a novel way to interpret the term, for we have upheld contained runoff caused by the construction of the primary facility at issue); language of our definition, will subject something to some action or process.

describe treatment in a conditional manner: it describes it not as “the possible contaminated by the landfill and controlled the discharge of landfill gases);

exemption for Seabrook Nuclear Power Plant discharge tunnels that discharge Appeal of Town of Hampton Falls, 126 N.H. at 807-08, 812 (upholding tax tall stack that discharged pollutants created during paper production process);

storm water, and temporary construction devices that prevented erosion and the facility will be active in that it will routinely treat pollution, or, put in the reduce its operating temperature, a facility that managed the discharge of a water injection system that injected water into a combustion turbine to

something will be “undergoing” treatment. Also, the definition does not exemption for landfill facility components that controlled the runoff of water campus); Appeal of Town of Bethlehem, 154 N.H. at 320-22 (upholding tax treatment.” Appeal of City of Berlin wastewater treatment facility that treated wastewater generated by a college end in view, the end often being to improve the quality of the thing undergoing Appeal of Town of Rindge, 158 N.H. at 23-26 (upholding tax exemption for

something to some action.” Thus, the term “treatment facility” presumes that subjection of something to some action,” but rather as “the subjection of

phrased in the active voice – it uses the word “subjection” and assumes that

to mean “the subjection of something to some action or process with a special As mentioned above, we have interpreted the statutory term “treatment” p. 8 II. Factual Support for DES’s Decision

abnormal operating condition because that factual situation is not before us.

eligible for the exemption in years in which they operate in response to an dispositive. Neither must we consider whether the facilities here would be facilities and the underlying rationale of the statute because our holding is

descriptions of each facility, with citations to documents not provided to DES

We need not address the arguments regarding the purpose of the

support DES’s decision because the “Application contained only brief it argues that the information provided in the Application was not sufficient to The Town first challenges NextEra’s Application as a whole. Specifically,

operating conditions, such as a LOCA, and, thus, are not treatment facilities. and fission product removal system, they operate only in the event of abnormal

was unjust or unreasonable. RSA 541:13; Appeal of Town of Rindge appealing party shows by a clear preponderance of evidence that the decision

DES’s findings of fact are presumed to be prima

qualify because, like the containment structure and the containment enclosure administrative officials.” Appeal of Town of Hampton Falls

at 24. from which DES could conclude as it did, see, 158 N.H.

N.H at 354-55. And, as stated above, we will overturn a DES decision if the findings sufficient to permit such review. Appeal of Town of Newington, 149 evidence or information for DES to decide NextEra’s RSA 72:12-a Application.” would permit meaningful review,” we will vacate and remand its decision for (quotation omitted). However, if “[DES’s] ruling is devoid of findings of fact that

components of facilities which themselves are not treatment facilities. evidence. See Appeal of Town of Bethlehem, 154 N.H. at 318, 322. to the exemption, these facilities still would not qualify because they are trier of fact in reviewing DES’s findings; nor do we resolve conflicts in the Council v. Public Utilities Comm’n, 118 N.H. 93, 99 (1978). We do not sit as a

presumption may be overcome only upon a showing that there was no evidence see RSA 541:13; Appeal of Town of Bethlehem, 154 N.H. at 318, and this

The Town next argues that “[t]here was not proper, suitable or sufficient

Even if we assume that integral components of treatment facilities are entitled

combustible gas control system are likewise not eligible for the exemption. The containment spray system, the containment cooling system, and the

removal system are not eligible for the RSA 72:12-a tax exemption. containment structure and the containment enclosure and fission product boron recycle system and the service water cooling tower. p. 9 uphold the decision to grant the exemption to the buildings associated with the DES’s findings regarding the tower lacked evidentiary support. We accordingly

supporting documents. Therefore, the Town has failed to demonstrate that

provides a detailed schematic drawing of the tower, and provides citations to Application specifically explains why the tower is entitled to the exemption, associated with the tower, aside from the tower itself. In any event, the

there is no evidence consequence. As stated above, we will only overturn DES’s findings where the service water cooling tower, it doesn’t appear that there are any buildings

descriptions were brief and did not cite original supporting documents is of no A. Buildings drawing of the system, and provides citations to supporting documents. As to that system are entitled to the exemption, provides a detailed schematic system, the Application specifically explains why the buildings associated with

assets, and the systems or areas in which the assets are located. That those relevant assets, descriptions of the assets, the identity tags associated with the address each claim in turn. contained an “Asset Determination” spreadsheet that provided the costs of the that they do not qualify for the exemption. With regard to the boron recycle

The Town next advances several challenges to specific facilities. We Furthermore, NextEra did provide cost data. The appendix to the Application system or the containment cooling system because we have already determined Application.

the documents if it so desired; the Town apparently declined to do so. the service water cooling tower. We need not address the containment spray during a [visit to the Plant].” NextEra also told the Town that it could review the Town’s general challenge to the evidentiary support for NextEra’s spray system, the containment cooling system, the boron recycle system, and this, and DES’s investigation “included review of . . . information collected decision to grant exemptions for buildings associated with the containment

to both DES and the Town. Thus, we will not disturb DES’s ruling based upon the documents were available for review at the Plant and neither party disputes The Town argues that there was no evidentiary support for DES’s

provided a detailed and lengthy Application, and opened the doors of the Plant documents cited in the Application were available to DES. NextEra stated that from which DES could conclude as it did. Here, NextEra We do not agree with this characterization of the Application. The

as to where those costs came from.” and with over 150 pages of systems and costs with no explanation or support p. 10 C. Containment On-line Purge Exhaust System

exemption to 16.73%. determination. Accordingly, we uphold DES’s decision to increase the Town has failed to show that there was no evidence to support this factual

space occupied by the primary auxiliary building filtered exhaust system. The

calculation based on that which DES determined to be the relevant amount of The decision complained of here was nothing more than a mathematical

explanation provided by NextEra.

building is entitled to a 16.73% exemption, basing its decision on the

equipment placement and space utilization.” DES ultimately ruled that the 2010 Application. . . . [T]he difference . . . [resulted from] the evolving design of and did not reflect the final design that was used in the preparation of the

prepared were still in design development (post-conceptual engineering layout)

drawings that were available for use at the time the original Application was original Application and the 16.73% set forth in the 2010 Application, the for the difference between the 9% building space percentage identified in the

physical changes have been made to the Primary Auxiliary Building to account

request for a 16.73% exemption, NextEra also explained that “[w]hile no Plant. To explain the discrepancy between the original 9% exemption and the the system and cited various supporting documents available for review at the

system. DES found that “[t]he sole purpose of the Containment On-Line Purge

the exemption. To support its claim, NextEra provided a schematic drawing of

decision to grant a 100% exemption for the containment on-line purge exhaust

ft.). From that, NextEra concluded that 16.73% of the building is entitled to

The Town argues that there was insufficient evidence to support DES’s

ft.) make up 16.73% of the total floor space occupied by equipment (24,478 sq. components of the primary auxiliary building filtered exhaust system (4,094 sq. the Primary Auxiliary Building Exhaust System occupy 4,094 sq. ft.” The

building exhaust system occupies 9% of that building’s floor space.

increase in the percentage allocation.

which 24,478 sq. ft. is occupied by equipment,” and that the “[c]omponents of

primary auxiliary building because it determined that the primary auxiliary

exemption and, according to the Town, there was no evidence to support an

that “[t]he Primary Auxiliary Building has a total floor area of 43,325 sq. ft. of NextEra supported the increased percentage in its application by explaining

In 1984, DES’s predecessor agency granted a 9% exemption for the

system because that system’s floor space had previously been granted a 9% building floor space occupied by the primary auxiliary building filtered exhaust The Town argues that DES erred in granting a 16.73% exemption for the

B. Primary Auxiliary Building Filtered Exhaust System in the evidence, see

p. 11 the system operates to control pollution. However, we do not resolve conflicts

resolved the conflicting evidence in its favor and found that only a portion of

The essence of the Town’s argument here is that DES should have

at the Plant and a schematic drawing of the exhaust system.

Plant Vent Stack.” It also provided supporting citations to documents available

filtering the Containment Structure exhaust air prior to its release through the from the Containment Structure.” It explained that “[t]his is accomplished by Exhaust System is to control and reduce potentially contaminated air released

that “[t]he Air Pollution Control Function of the Containment On-Line Purge

system is designed and constructed to convey heated water to a point in the

NextEra claimed that 100% percent of the system is exempt. It stated

discharges it 5,500 feet from the shoreline. DES found that the discharge

as it would with any industrial building housing a nuclear reactor.” adequate normal air circulation and changes through the containment building

then transports the heated water back to the ocean through a tunnel that condensation, heated water remains. The circulating water discharge system from the Plant’s turbine. After the cooling water mixes with the steam

exempt up to the percent that is in excess of that which is required to maintain

Ocean to absorb the heat associated with the condensing of steam exhausted

report concluded that “[s]ome portion of this system is generally pollution is, among other things, an expert in valuation of nuclear power plants. That submitted a report authored by George Sansoucy, a consulting engineer who

The circulating water system draws cooling seawater from the Atlantic

We disagree. 11

D. Circulating Water Discharge System radioactive particles from the air.” To support its contention, the Town

decision to grant a 100% exemption for the circulating water discharge system.

exemption only for “that portion of the purge system that is designed to filter this finding. some pollution control.” According to the Town, DES should have granted an maintaining adequate air circulation and temperature changes and of providing

The Town argues that there was insufficient evidence to support DES’s

had ample evidence to support its conclusion. Accordingly, we find no error in

exemption. environment.” DES accordingly ruled that the system is entitled to a 100%

materials (pollution) from an exhaust stream (air) prior to release to the Exhaust System is to reduce or eliminate (treat) the airborne radioactive other infrastructure. Thus, the Town contends that the purpose of the

p. 12 surrounding marsh and beach area, as well as nearby roads, bridges, and

were to be discharged into the Browns River, it would overwhelm the in a nearly identical manner. Specifically, the Town asserts that if the water and, with regard to the volume of water, the Town of Seabrook has responded

to discharge the water.” Id

Id Here, NextEra has claimed the same exemption for the same reasons, entitled only to an exemption to the extent that it reduces thermal pollution. not be characterized as damage caused by a pollutant and thus the system is

will minimize adverse environmental impacts. Id discharge on the local estuarine system. Id

environmental damage.” Id transporting heated water because “without the heat, there would be no need

is the ocean, not the tunnel, that controls the pollution. Id

supported by the record. Id volume of water, arguing that damage caused by a high volume of water could. examined the supporting evidence, and held that the agency’s finding was

pollutants to a receiving body of water and discharge them in a manner that transportation of the heated water to the ocean minimizes the effects of thermal could not be separated and ruled that the sole purpose of the system is to carry

of receiving the physical quantity of water . . . or the heat without in question to remove pollution, but rather requires the facility to reduce, transporting a large volume of water cannot be separated from the function of the river that feeds the Hampton Harbor marsh, which it asserted is “incapable. at 812-13. A high-level employee of the Plant testified that the function of claimed that it could have simply discharged the water into the Browns River, the ocean where cooling will occur through dispersion in the ocean and thus it pollution control facility because it merely transports heated water to a point in The Town of Hampton Falls also took issue with the claim about the The Town of Hampton Falls first argued that the system is not a

discharge system does reduce and control thermal pollution because the

eliminate pollution. Id. at 811. Then, we concluded that the

disagreed. We first noted that the statute does not actually require the facility

In Appeal of Town of Hampton Falls

water into the Browns River. Id. prevent the environmental damage that would be caused by discharging the that the entire system is entitled to the exemption because it is intended to

addressed the 1982 tax exemption application, we upheld an agency decision

damaging the Hampton Harbor marsh and estuarine system. Atlantic Ocean where it can be discharged without polluting or otherwise p. 13 F. Storm Water Run-Off and Treatment System

grant a 57% exemption to the circulating water intake tunnel. they operate in an identical manner. Accordingly, we uphold DES’s decision to thermal pollution. There is no reason to treat the systems differently when

exactly like the discharge tunnel and thus its length likewise minimizes

circulating water discharge tunnel; when the intake tunnel discharges, it is Furthermore, the outcome here is consistent with our ruling concerning the discharge.” NextEra also cited supporting documents available at the plant.

condenser cooling water beyond the estuarine system to the offshore point of

the effects of the thermal discharge by transporting the heated steam

control function of the circulating water intake tunnel “is to control and reduce support the exemption. NextEra specifically explained that the pollution intake tunnel. However, DES did have before it ample other evidence to

not have before it any documents from the EPA addressing the extension of the

The Town argues that we should overturn this decision because DES did

concerns, or 57% of the total tunnel (4,000/7,000).

exemption – that is, the 4,000 feet that was added to address environmental

feet.” Thus, DES ruled that the extended portion of the tunnel is entitled to the thermal pollution when water is discharged, the tunnel must extend 7,000 the tunnel could extend 3,000 feet into the ocean; due to US EPA concern over

system. We disagree. In Appeal of Town of Newington

tunnel for discharge. DES agreed, finding that “if not for this period[ic] use,

grant a 100% exemption for the Plant’s storm water run-off and treatment E. Circulating Water Intake Tunnel

long because of environmental concerns associated with the periodic use of the

The Town argues that the record does not support DES’s decision to control facility entitled to a 100% exemption. we hold that DES did not err in ruling that the discharge system is a pollution transporting the heated water beyond the Hampton Harbor area. Thus, again, the Environmental Protection Agency (EPA) required the tunnel to be 7,000 feet as a discharge tunnel for purposes of biofouling control. NextEra claimed that primarily to draw cooling water from the ocean. However, it is periodically used

that the discharge system was designed to treat thermal discharge by

intake tunnel is entitled to a 57% exemption. The intake tunnel is used

NextEra provided ample evidence to support a 100% exemption. It explained high volume of water is not damage caused by a pollutant. To the contrary, This is just another way of saying that damage caused by the discharge of a The Town argues that DES erred in ruling that the circulating water

infrastructure. According to the Town, this is not a pollution control purpose. discharge system is, at least to an extent, to maintain and preserve public will not add words the legislature did not see fit to include. Appeal of Town of Investigate means “to observe or study closely.” Webster’s Third New p. 14 requirement cannot be gleaned from the words “investigate and determine.” statutory text cannot be fairly construed as requiring hearings. First, a hearing

We accord statutory language its plain and ordinary meaning, and we

The statute does not, however, explicitly mention hearings, and the

essentially argues that the statute itself requires a hearing. We disagree. hearing was necessary for DES to fulfill its statutory duties. Thus, it grant of investigatory discretion to interpret it as containing an atextual it in making its determination.” RSA 72:12-a, III. such other information from the applicant as is reasonably necessary to assist

required DES to exercise its discretion to hold a hearing in this case because a a hearing. Second, it would be plainly inconsistent with the statute’s broad and permits, but does not require, DES to “inspect the facility and request

hearing is necessary. Nevertheless, the Town argues that RSA 72:12-a statutory phrase “investigate and determine” necessarily requires DES to hold dispute that this regulation grants DES the discretion to determine whether a could be helpful to the completion of these tasks, we see no reason why the believes an oral public hearing would be of benefit.” The Town does not extent. It also gives DES wide latitude in choosing its investigatory techniques, “to settle a question or controversy.” Id. at 616. Though a hearing certainly International Dictionary 1189 (unabridged ed. 2002). And, “determine” means

this system was amply supported by the record and we decline to overturn it.

oral public hearing in a non-adjudicative proceeding . . . [if] the department determine” whether a facility is eligible for the exemption and, if so, to what Rindge, 158 N.H. at 24. RSA 72:12-a, III requires DES to “investigate and

supporting documents. Accordingly, DES’s decision to grant an exemption to

a controlled manner to prevent erosion,” Env-C 205.03(a)(4) provides, among other things, that DES “shall conduct an N.H. Admin. Rules, Env-C 205.01(c). New Hampshire Administrative Rule, hearing on this matter. RSA 72:12-a proceedings are non-adjudicative. See entering sensitive environmental areas. Id The Town’s third argument on appeal is that DES was required to hold a runoff, as well as to trap sediment to prevent silt-laden runoff water from system was designed to minimize erosion, stabilize embankments, and control

Application also provides a schematic drawing of the system and cites available treat yard run-off to remove sediment before discharge from the site.” The

management system. We noted that testimony in the record stated that the upheld a DES decision to grant a 100% exemption to a storm water litigated and determined in the prior action.” Gray v. Kelly p. 15 person in privity with such a party[,] from relitigating any issue or fact actually “[T]he doctrine of collateral estoppel bars a party to a prior action, or a

have a right to be a party to the process. Appeal of Town of Bethlehem

determination regardless of submissions made by anyone

hearings. The Town was not a named party to the process. Nor did the Town Here, DES’s investigative process was non-adjudicative. There were no [collateral estoppel, res judicata, or finality].” proceeding. See have required NextEra to establish that the changes are not barred by or amount, from that previously determined in [the 1984 decision], DES should

recognized, “[DES is] statutorily authorized to investigate and make a

judicial in nature if officials are bound to notify, and hear the parties, and can

Appeal of City of Keene, 141 N.H. 797, 800 (1997) (“An act is requirement the legislature did not see fit to include in the statute’s text. See fact. (emphasis added). Thus, the proceeding has none of the hallmarks of a judicial

applicant and the Town.” Appeal of Town of Bethlehem, 154 N.H. at 330 the extent NextEra’s application requests a change in the tax exemption status,, including the of the prior litigation.” Id any issue that was, or might have been, raised in respect to the subject matter RSA 541-A:39 (2007) and RSA 72:12-a, II. Furthermore, as we have previously right to receive notice and submit comments on the Application pursuant to N.H. at 326-27. Instead, at the administrative level, the Town merely had a

audio recording should be authorized in school buses . . . .”). We will not add a setting to preclude an adverse party from rearguing certain issues of law or 2011) (“[T]he school board shall hold a public hearing to determine whether as affirmative defenses. Id. Thus, both doctrines operate in an adversarial shall hold a public hearing in the municipality.”); RSA 570-A:2, II(k)(2) (Supp. estoppel, and finality bar NextEra’s application. Its basic argument is that “to. (quotation omitted). Both doctrines must be raised

(2010) (quotation omitted). Similarly, “[r]es judicata . . . bars the relitigation of IV. Res Judicata, Collateral Estoppel, and Finality, 161 N.H. 160, 164

A:22, V-b(e) (2001) (“Before land is taken by eminent domain, the department The Town’s fourth argument on appeal is that res judicata, collateral

explicitly required hearings. See a facility is entitled to the statutory exemption. 72:12-a does not require DES to hold a hearing when it is determining whether Appeal of Town of Rindge, 158 N.H. at 24. Accordingly, we hold that RSA

constitution, the executive council shall hold a public hearing . . . .”); RSA 485judicial appointment with the governor under the provisions of the

hearings, it could have easily done so. Indeed, in other statutes, it has mandatory hearing requirement. Had the legislature intended to require between the two applications.” Johnston v. Ambulatory Surg. Assoc. v. Nolan p. 16 unless the applicant can demonstrate a change in material circumstances

raise traditional legal defenses. Appeal of Town of Bethlehem for [a] substantially similar outcome from an administrative agency is barred DES’s administrative rules, or our State Constitution. We repeat what we process into a full-blown adversarial proceeding in which opposing parties may 72:12-a tax exemptions and DES had no obligation to turn its investigatory

72:12-a tax exemptions was ultra

“provides for a qualified and limited preclusion, wherein a second application adjudicative proceedings under the Administrative Procedure Act, RSA 72:12-a, As to the Town’s reliance on administrative finality, we note that doctrine put, NextEra was merely seeking a determination from DES regarding RSA Cf

application of rules providing for a non-adjudicative determination of RSA doctrine in the context of zoning board of appeal decisions. See

that towns affected by RSA 72:12-a tax exemptions have no right to formal there was no adversary who had a right to be a party to the process. Simply changes since the prior application and the statute itself has been modified. decision in Appeal of Town of Bethlehem, 154 N.H. at 326-29, in which we held character. raise any defenses. Both doctrines operate in an adversarial setting – here, vires. This argument is foreclosed by our raised as affirmative defenses – here, there was no party who had a right to The Town’s final argument on appeal is that DES’s adoption and context of DES tax exemption investigations, but we have applied a similar

under RSA 72:12-a. we need not determine whether administrative finality applies to DES decisions NextEra’s application would not be barred by administrative finality, and thus . Brandt Dev. Co. v. City of Somersworth, 162 N.H. 553 (2011). Accordingly,

here, the Town’s argument nonetheless fails. There have been material determinations because the process used has a uniquely non-adjudicative Parkland Med. Ctr., 158 N.H. 67, 71 (2008). Assuming the doctrine does apply relitigation of issues – here, there was no litigation. Both doctrines must be Appeal of

preclude the relitigation of issues decided in prior administrative decisions, see 755 A.2d 799, 809 (R.I. 2000). We have not adopted this doctrine in the

774, 777-78 (2003), these doctrines cannot operate in RSA 72:12-a Tyler v. Hannaford Bros. res judicata and collateral estoppel do not apply. Both doctrines prevent, 161 N.H. 242, 246 (2010); Cook v. Sullivan, 149 N.H. In light of the character of DES’s investigative process, the doctrines of 29. Although we have stated that res judicata and collateral estoppel may

the parties choose to lay before them.” (quotation omitted)). only decide after weighing and considering such evidence and arguments, as p. 17 17

Affirmed in part and reversed

so. It did not.” Appeal of Town of Bethlehem to become a party to an adversarial-type proceeding, it could easily have done

DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

in part

opposed a tax exemption application the opportunity for a formal hearing and previously said: “If the legislature desired to permit a municipality which