Power Reactor Development Co v. International Union of Electrical, Radio and Machine Workers United States v. International Union of Electrical, Radio and Machine Workers, AFL-CIO

• Decision Date: 12 June 1961
• Docket Number: AFL-CIO,Nos. 315,454,s. 315
• Citation: 81 S.Ct. 1529,6 L.Ed.2d 924,367 U.S. 396
• Parties: POWER REACTOR DEVELOPMENT CO., Petitioner, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS,, et al. UNITED STATES et al., Petitioner, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS,, et al
• Court: U.S. Supreme Court

367 U.S. 396

81 S.Ct. 1529

6 L.Ed.2d 924

POWER REACTOR DEVELOPMENT CO., Petitioner,

v INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE

WORKERS, AFL-CIO, et al.

UNITED STATES et al., Petitioner,

v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE

WORKERS, AFL-CIO, et al.

Nos. 315, 454.

Argued April 26, 27, 1961.

Decided June 12, 1961.

[Syllabus from pages 396-397 intentionally omitted] Mr. W. Graham Claytor, Jr., Washington, D.C., for petitioner in No. 315.

Mr. Sol. Gen. Archibald Cox, Washington, D.C., for petitioners in No. 454.

Mr. Benjamin C. Sigal, Washington, D.C., for respondents in both cases.

Mr. Justice BRENNAN delivered the opinion of the Court.

This case is the first contested licensing proceeding to be decided by the Atomic Energy Commission under the Atomic Energy Act of 1954, 68 Stat. 919, 42 U.S.C. § 2011 et seq., 42 U.S.C.A. § 2011 et seq. It presents the question whether the Commission erred in continuing in effect a provisional construction permit which authorizes the petitioner Power Reactor Development Company to construct, but not to operate, a fast-neutron breeder reactor for the generation of electric power. The Court of Appeals for the District of Columbia Circuit set that order aside. 1960, 108 U.S.App.D.C. 97, 280 F.2d 645. We granted certiorari, 1960, 364 U.S. 889, 81 S.Ct. 221, 5 L.Ed.2d 186, on petitions of the United States and of Power Reactor Development Company (hereafter PRDC), to decide an important question of the scope of the Commission's power under the Atomic Energy Act of 1954.

Stated more precisely, the question before us is whether the Commission, in issuing a permit for the construction of a facility which will utilize nuclear materials, such as the power reactor presently involved, must make the same definitive finding of safety of operation as it admittedly will have to make before it licenses actual operation of the facility. The Court of Appeals said: 'It is undisputed that the Commission must make such a finding when it authorizes operation. The question is whether it must make such a finding when it authorizes construction. In our opinion it must.' 108 U.S.App.D.C. at page 100, 280 F.2d at page 648. Petitioners agree that some finding directed to safety of operation must be made at the construction-permit stage of the proceeding, but argue that the Court of Appeals erred in holding that the Commission must have the same degree of certitude at this preliminary point as when it licenses operation. In order to understand how the controversy arises and what is involved in its resolution, it will be necessary to state the proceedings in the case at some length, and then describe in detail the government statute and administrative regulations. For the decision of this case ultimately turns on a comparison of what the Commission found with what the statute and regulations require.

The case began on January 7, 1956, when PRDC filed with the Commission (hereafter sometimes referred to as the AEC) an application to construct and operate a developmental power reactor of a relatively new type. This device has two characteristics which distinguish it from other nuclear reactors. First, the neutrons which fly about inside the reactor (to use crude but graphic layman's terminology) and split atoms of fissionable Uranium—235—thus releasing new neutrons and energy in the form of heat—are 'fast' neutrons. That is, they travel at a velocity of about 10, 000 miles per second, much faster than neutrons in ordinary reactors. Second, this reactor is a 'breeder': it has the property of being able to produce about 1.2 times as much fis ionable material as it consumes. This result comes about through a sort of modern alchemy; when the neutrons fly outside the inner core of the reactor, which is composed of fissionable U—235, they enter a blanket of nonfissionable U—238. Atoms in this blanket are changed, when struck by a neutron, into Plutonium, itself a fissionable fuel which can be removed from the reactor and be put to possible use in other installations. Thus, the reactor 'breeds' Plutonium faster than it uses up U—235. It not only generates energy to produce electric power, it also creates new reactor fuel. This 'breeder' effect is attainable because of the use of fast neutrons. Two boron control rods inserted into the reactor are a means designed to reduce its power level at any time. And in addition to these rods, eight more boron rods are suspended by an electromagnet over the reactor; in case the reactivity rises to a danger- ously high level, these safety rods are intended to drop into the reactor automatically and shut it down immediately. The whole machine is housed in a series of thick concrete, graphite, and steel layers, all underground. Over this entire complex is placed a football-shaped building, enclosed in a two-inch steel shield capable of containing an explosion equal in force to 1,000 pounds of TNT, which is greater than any explosion which any of the experts who testified in this case believes is at all likely to result from an accident in the operation of the reactor. The application, after describing the reactor in much greater detail than this rudimentary summary, went on to provide that the reactor would be located at Lagoona Beach, Mich., on the shores of Lake Erie, about 35 miles from the center of Detroit, Mich., and about 30 miles from the center of Toledo, Ohio.

The Commission took the case under advisement and, on August 4, 1956, despite a report of its Advisory Committee on Reactor Safeguards which was at best noncommittal about the probable safety of the proposed reactor in operation, issued a provisional construction permit without having held public hearings as the law at that time permitted it to do. This permit was subject to the following condition:

'The conversion of this permit to a license is subject to submittal by PRDC to the Commission (by amendment of the application) of the complete, final Hazards Summary Report (portions of which may be submitted and evaluated from time to time). The final Hazards Summary Report must show that the final design provides reasonable assurance * * * that the health and safety of the public will not be endangered by operation of the reactor * * *.'

On August 31, 1956, in accordance with the Commission's then existing rules of practice, the respondents in this Court, International Union of Electrical, Radio, and Machine Workers, United Automobile, Aircraft, and Agricultural Implement Workers of America, and United Papermakers and Paperworkers, petitioned the Commission for permission to intervene and oppose continuation in effect of PRDC's provisional construction permit. The AEC granted permission to intervene on October 8, 1956, and set the case down for a hearing before one of its hearing examiners. Extensive hearings were held between January 8, 1957, and August 7, 1957, and on November 22, 1957, in accordance with the AEC's order setting the case for hearing before him, the examiner, instead of issuing an initial decision and opinion of his own, transferred and certified the record of the hearings to the full Commission for its consideration. Oral argument was had before the Commission on May 29, 1958. On December 10, 1958, the Commission rendered its 'Opinion and Initial Decision' continuing PRDC's permit in effect, subject to the same condition recited above. To its opinion were appended extensive findings of fact, including Finding 22, which is of central importance to the decision of this case. That finding reads as follows:

'22. The Commission finds reasonable assurance in the record that a utilization facility of the general type proposed in the PRDC application and amendments thereto can be constructed and will be able to be operated at the location proposed without undue risk to the health and safety of the public.'

Commissioners Vance and Floberg joined in the opinion. Commissioner Graham filed a short concurring opinion agreeing with the Commission's basic safety findings, just quoted, but doing so in much shorter compass than the majority. Commissioners Libby and McCone (the chairman) took no part in the decision. The result of this initial opinion was an order continuing PRDC's provi- sional construction permit in effect, but containing the same condition which the original permit, issued on August 4, 1956, had contained.

The intervening unions, as was their right, filed detailed exceptions to this initial decision. The Commission fully reconsidered all the contentions and reviewed the evidence presented at the lengthy hearings, with particular attention to the testimony of the scientific experts, several of them members of the Advisory Committee on Reactor Safeguards, who had testified. On May 26, 1959, the Commission issued its 'Opinion and Final Decision,' dealing with all questions presented in even greater detail and reaffirming its initial decision. The Commission emphasized that 'public safety is the first, last, and a permanent consideration in any decision on the issuance of a construction permit or a license to operate a nuclear facility.' Even after operation of the reactor is licensed—if it ever is—the Commission, it said, will retain jurisdiction over PRDC's activities to ensure that the highest safety standards are maintained. The opinion went on to examine the suitability of the proposed site, noted that it was near a great population center, and nevertheless concluded that at the present stage there was reasonable assurance that the general type of reactor proposed by PRDC would be safe enough at that location. The Commission pointed out, however, that its action in allowing PRDC to proceed with construction was by its nature tentative and preliminary, and that it was by no means committed to the issuance of an operating license. 'PRDC has been on notice since before the first shovel of dirt was moved,' it said, 'that its construction permit is...