400 F.2d 778 (D.C. Cir. 1968), 21334, Siegel v. Atomic Energy Commission

Docket Nº:21334, 21342.
Citation:400 F.2d 778
Party Name:Paul SIEGEL, Petitioner, v. ATOMIC ENERGY COMMISSION and United States of America, Respondents, Florida Power and Light Company, Intervenor. Paul SIEGEL, Petitioner, v. ATOMIC ENERGY COMMISSION and United States of America, Respondents.
Case Date:August 06, 1968
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 778

400 F.2d 778 (D.C. Cir. 1968)

Paul SIEGEL, Petitioner,

v.

ATOMIC ENERGY COMMISSION and United States of America, Respondents, Florida Power and Light Company, Intervenor.

Paul SIEGEL, Petitioner,

v.

ATOMIC ENERGY COMMISSION and United States of America, Respondents.

Nos. 21334, 21342.

United States Court of Appeals, District of Columbia Circuit.

Aug. 6, 1968

Argued May 22, 1968.

Page 779

Mr. Paul Siegel, pro se.

Mr. Marcus A. Rowden, Asst. General Counsel, Atomic Energy Commission, with whom Donald F. Turner, Asst. Atty. Gen., and Mr. Howard K. Shapar, Asst. General Counsel, Atomic Energy Commission, were on the brief, for respondents. Mr. Howard E. Shapiro, Atty., Department of Justice, also entered an appearance for appellee United States of America, Mr. Thomas F. Engelhardt, Atty., Atomic Energy Commission, also entered an appearance for respondent, Atomic Energy Commission.

Mr. Phillip Goldman, Miami, Fla., with whom Mr. Roy B. Snapp, Washington, D.C., was on the brief for intervenor in No. 21, 334.

Before BAZELON, Chief Judge, and BASTIAN, Senior Circuit Judge, and McGowan, Circuit Judge.

McGOWAN, Circuit Judge:

These two statutory review proceedings, heard together, turn largely upon a common question: Must the Atomic Energy Commission, in licensing the construction of nuclear reactors for peaceful civilian use, take into account, and require a showing of effective protection against, the possibilities of attack or sabotage by foreign enemies? No. 21, -334 challenges an order of the Commission authorizing a public utility company to construct two nuclear reactors for the generation of electricity. No. 21, 342 attacks the validity of a regulation issued by the Commission in rule-making proceedings. The various substantive and procedural defects attributed to each essentially derive from the negative answer given by the Commission to the central question. If that answer was within the Commission's power to give, the orders may stand. We think it was.

I

The intervenor here in No. 21, 334-- Florida Power & Light Company-- is the owner of 1900 acres of land on the west shore of Biscayne Bay, known as the Turkey Point site. Located about 25 miles south of Miami, the area is swampy and unpopulated, and is to be used by intervenor as the site of generating facilities, both nuclear and conventional. Early in 1966 intervenor applied to the Commission for authority to construct two pressurized water reactors in which steam will be created by atomic processes to drive turbines generating electricity. 1

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As the Act requires, the application was initially examined by the Commission's staff, and also by the Advisory Committee on Reactor Safeguards, the latter being a group of independent experts from which the Act requires the Commission to receive a report on each power reactor application. Thereafter the Commission set the matter for hearing by an atomic safety and licensing board consisting of a federal hearing examiner and two technical experts. The notice of the hearing specified a number of issues to be explored, including the one of whether the construction of the proposed facility 'will be inimical to the common defense and security or to the health and safety of the public.'

Petitioner sought leave to intervene, alleging that he was a resident of Miami and that his interest as such 'might be affected by intentional attempts to harm the reactors, such as a bombing attack against them from Cuba.' The special nature of petitioner's concern is more precisely articulated in the following assertions made to us in his brief:

'In the case of the FP&L reactors there is a particular need to consider the potential effect on the reactors of the weapons in the arsenal on Cuba, because of the proximity of that country to the reactor site, the Communist government which controls it, and the instability of its leader.' 'The problem is not the probability of sabotage or enemy attack in the context of the world situation existing in the year 1967, but rather that probability for the years 1970 through 2011, when the Florida Power & Light reactors are expected to be operating.'

At a prehearing conference on February 10, 1967, there was extensive argument about the propriety of permitting petitioner to intervene, centering around the question of the relevance of enemy attack or sabotage. The hearing board at length permitted intervention, but signified its purpose to certify promptly to the Commission the question of whether the board should concern itself with the contingency of hostile enemy action. This was done on February 14, and six days later a response was received from the Commission to the effect that the Commission's established policy and practice of not requiring special design features to protect against enemy attack had been embodied in a notice of proposed rule-making approved for issuance on February 9. 2 A copy of that notice was

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supplied, and the board was instructed not to address itself to the subject matter identified in its certified question.

At the subsequent hearing on the merits of the application, petitioner, although apparently offering no witnesses or evidence of his own, sought by crossexamination to inquire into the matter of protection against enemy attack. The board sustained objections to this effort. The hearing eventuated in an Initial Decision by the hearing board that the construction permits be issued. The board expressly disclaimed any consideration by it of the potentialities of enemy action in concluding that the proposed construction was compatible with 'the common defense and security' and 'the health and safety of the public.'

Petitioner's exceptions to the Initial Decision raised essentially two issues. 3 One was the substantive issue that the board's conclusions in the respects just mentioned were insupportable because of the lack of evidence on enemy attack; and the other was the procedural claim that the board's foreclosure of inquiry into this area deprived petitioner of the hearing he was entitled to have under the statutes and the Constitution. Except in certain particulars not in issue here, the Commission accepted the hearing board's conclusions.

In its Memorandum and Order of August 4, 1967, the Commission dealt at length with petitioner's exceptions. It noted the degree to which Congress had explicitly vested in the Commission the responsibility for interpreting and implementing the general standards contained in the Act, including those articulated as 'the common defense and security' and 'the health and safety of the public.' It asserted that nothing in the Act or its predecessor, nor in the legislative history of either, suggested a Congressional purpose to comprehend within these standards the possibility of enemy attack. It referred to the fact that the detailed regulations it had issued with respect to these standards had never contemplated inquiry into enemy attack, and that the Commission's fixed practice had been to regard such inquiry as unnecessary-- a practice now embodied in a specific proposed regulation.

The circumstances at the time of the passage of the Act, so that the Commission, indicated that the Congressional concern with 'the common defense and...

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