Siegel v. Atomic Energy Commission
| Decision Date | 06 August 1968 |
| Docket Number | 21342.,No. 21334,21334 |
| Citation | 400 F.2d 778 |
| Parties | 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. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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.
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.
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 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:
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 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 cross-examination 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 security" related to such matters as "the safeguarding of special nuclear material; the absence of foreign control over the applicant; the protection of Restricted Data; and the availability of special nuclear material for defense needs." The public health and safety standard, in like fashion, was said to be addressed "to the overall qualifications of the applicant and the design of the facility to protect plant employees and the public against accidents and their consequences." So viewed, the Commission concluded that neither of the standards contemplated that an applicant be required to show "special design features or other measures for the specific purpose of protection against the effects of enemy attacks and destructive acts."4
The rationality of this approach the Commission thought to find in such considerations as (1) the impracticability, particularly in the case of civilian industry, of anticipating accurately the nature of enemy attack and of designing defenses against it, (2) the settled tradition of looking to the military to deal with this problem and the consequent sharing of its burdens by all citizens, and (3) the unavailability, through security classification and otherwise, of relevant information and the undesirability of ventilating what is available in public proceedings.
As to petitioner's claim of a denial of procedural due process, the Commission said that, if it was right in concluding that the matter should not be gone into at all, foreclosing petitioner from cross-examination about it could not possibly violate any statutory or constitutional right to be heard. In a stipulation filed in this court, petitioner "concedes that for the purpose of this review proceeding he does not contend that he was denied a full and complete hearing in any respect other than with respect to the subject of possible attacks and destructive acts directed against the reactor by an enemy of the United States."
The notice of proposed rule-making was published on February 11, 1967. It stated that written comments would be received. In response to this invitation, petitioner sent the Commission a letter, dated March 10, 1967, expressing doubts about the desirability of the proposed rule. He expressed the hope that the Commission would consider the matter carefully and he asked that, before making the regulation effective, a public hearing be held under Section 2239 of the Act,5 and that "this be an `on the record' hearing" under Sections 7 and 8 of the Administrative Procedure Act. The Commission informed petitioner by letter of April 5, 1967, that it considered the opportunity to make written comments as satisfying Section 2239. It added...
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