CITIES OF STATESVILLE, ET AL. v. Atomic Energy Commission
| Decision Date | 05 December 1969 |
| Docket Number | No. 21706,21844.,21706 |
| Parties | CITIES OF STATESVILLE, ET AL., Petitioners, v. ATOMIC ENERGY COMMISSION and United States of America, Respondents, Duke Power Company, Intervenor. POWER PLANNING COMMITTEE OF the MUNICIPAL ELECTRIC ASSOCIATION OF MASSACHUSETTS et al., Petitioners, v. ATOMIC ENERGY COMMISSION and United States of America, Respondents, Vermont Yankee Nuclear Power Corp., Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Joseph O. Tally, Jr., Fayetteville, N. C., with whom Messrs. Jack R. Harris, Statesville, N. C., Morris Chertkov and Worth Rowley, Washington, D. C., were on the brief, for petitioners in No. 21,706.
Mr. George Spiegel, with whom Messrs. Worth Rowley and John C. Scott, Washington, D. C., were on the brief, for petitioners in No. 21,844.
Mr. Marcus A. Rowden, Asst. Gen. Counsel (Solicitor), Atomic Energy Commission, with whom Mr. Charles M. Farbstein, Atty., Atomic Energy Commission, was on the brief, for respondents.
Messrs. Howard K. Shapar, Asst. Gen. Counsel, Licensing & Regulation, Atomic Energy Commission, Robert E. Turtz, Atty., Atomic Energy Commission, Howard E. Shapiro, Attorney, Dept. of Justice, and Asst. Atty. Gen., Edwin M. Zimmerman, at the time the brief was filed, were also on the brief, for respondents. Mr. Thomas F. Engelhardt, Atty., Atomic Energy Commission, also entered an appearance for respondents in No. 21,844.
Mr. Carl Horn, Jr., with whom Messrs. William H. Grigg, Charlotte, N. C., Roy B. Snapp, Carlton A. Harkrader and Wm. Warfield Ross, Washington, D. C., were on the brief, for intervenor in No. 21,706. Mr. Joel E. Hoffman, Washington, D. C., also entered an appearance for intervenor in No. 21,706.
Mr. George H. Lewald, So. Hanover, Mass., of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of court, for intervenor in No. 21,844. Mr. Jerome Ackerman, Washington, D. C., was on the brief for intervenor in No. 21,844.
Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON and ROBB, Circuit Judges.
Reargued en Banc June 26, 1969.
ON REHEARING EN BANC
On August 6, 1945, some four square miles of a city were destroyed by a blast from a bomb with the explosive force of 20,000 tons of TNT.1 On August 9, 1945, 39,000 human beings were killed and 25,000 injured in a similar explosion. Five days later a four-year war in the Pacific was over. In November, 1952, an island in mid-Pacific disappeared and in its place gaped a hole one mile wide and 175 feet deep. The TNT equivalent of such a blast is set at about 6,000,000 tons and the cause of that disturbance has become known as "The Bomb." A chronology of devastation does arise out of the exigencies of war — hot and cold — but because the success of peaceful civilization, like that of war, is dependent upon adaptibility to the environment, the inventive genius of destruction has now turned into an effort toward constructive and peaceable use of a most fantastic source of power.
The invention of the atomic bomb and its regrettable detonations have demonstrated that the fission or splitting of one pound of uranium yields an energy equivalent of 3,000,000 pounds of coal. That figure, translated into heat, amounts to about 10,000,000 kilowatt hours. It is therefore quite apparent why industry has sought to domesticate the atom and exploit its power with the intention of sophisticating both manpower and machinery in order to achieve a saleable product.
From the time our earliest ancestors squatted about their fires to this present century, the primary source of man's energy has been fossil fuel. Coal and its chemical family of wood, gas, kerosene, oil and the like have been appropriated by man to warm his cave, cook his food, light his home, power his automobile, and provide for his many general comforts in an ever-changing environment. This reliance, however, has had some visible side effects that are mounting in disturbing proportions. Man's failure to preserve his fuel supply through conservation has caused the available reserve of fossil fuel to diminish to the extent that man's energy needs must be supplemented by an alternative source within the next century. Moreover, this very mobile civilization of ours seems bent upon burning fuels to such an extent that modern pollution has contaminated the air we breathe, the water we drink, and the food we eat. Also, the exhaustive drain on our natural resources has occasioned irreparable damage in the area of their departure. It is therefore imperative that other means be employed to those same good ends of meeting mankind's needs.
The nuclear fission reaction, somewhat analogous to a fire, is maintained, in peaceful applications, by the nuclear or atomic reactor. Here a controlled chain of nuclear explosions occurs on a self-sustaining (and self-destructing) pattern. Traditional fossil fuel generators burn coal whereas nuclear generators "burn" uranium, and, while the layman can make facile comparisons of this nature, nuclear reactor engineers are still struggling to find an efficient process for controlling the reaction. Thus, the basic problem in using atomic power to generate electricity is harnessing nuclear fission to drive more or less conventional turbines.
The first nuclear reactor to generate electricity was built on an experimental basis by the Argonne National Laboratory in 1951. In 1956, the British began to operate the Calder Hall station as a large-scale endeavor. These plants could neither produce electricity on the scale of the traditional coal-burners, nor compete economically at any scale. They were, however, the prototypes of what the power companies in the instant cases hope to develop. As late as 1967 the output of electricity from nuclear generating plants was only about one per cent of the total output of the conventional generators. It is hoped that by 1980 that figure will be about 37.5 per cent, but it is clear that the present experimentation must attain substantial success if that projected figure is to be realized.
It has been found that the cost of plant construction and technological skills, although immense, is surmountable in view of the economic return — should all go well. However, at the present time, the efficiency of the fuel cycle is still an economic problem to be overcome before all can go well. This fuel cycle depends on the critical mass of the nuclear fuel, that is, the amount of fuel necessary to sustain the chain reaction. As fuel is consumed, more fissionable atoms must be introduced into the system in order to perpetuate the reaction. Also, there are intricate fuel recovery problems. The "waste product" of the reaction contains valuable amounts of fissionable material which must be recovered, reconditioned and replaced. This process is quite technical and quite costly. Extensive experimentation has been directed toward finding cheaper and more practical ways both of producing the desired chain reaction and of reprocessing the waste. This "fuel burnup" problem can be analogized to the more familiar processes of coal-burning generators. Suppose that out of one pound of coal used in a conventional generator, only one ounce is effectively "burned," leaving fifteen ounces of waste to be reconditioned before reburning. Efficiency in heat production could be realized only if an effective method of reusing the "waste" product could be attained. Thus it is with the present nuclear reactors — the problem is how to get the optimum effect from the minimum cause. In addition to the difficulty of finding an efficient means of recovering unused fuel, other major obstacles must be overcome before the full potential of atomic reactors can be realized. We list a few:
Hopefully all these problems can be resolved, but there remains the practical problem of maintaining one's head "economically" above water until practical solutions are found. It is therefore necessary that these problems of economy be overcome before widespread commercial use is feasible in the competitive sense.
The petitioners are eleven North Carolina municipalities and Piedmont Cities Power Supply, Inc., a corporation formed to enable petitioners to conform to the North Carolina law which prohibits municipalities from owning an interest in a federally-licensed electric generating facility located outside their service areas. The respondents are the Atomic Energy Commission and the United States of America. The intervenor is the Duke Power Company, a public utility engaged in the production, transmission and sale of electric power in both North and South Carolina.
In the latter part of November, 1966, Duke Power Company, the intervenor herein, applied to the Atomic Energy Commission for a grant of authority to construct, use and operate three nuclear reactors to be located in its electric generating system in Oconee County, South Carolina. This application was filed in compliance with section 104(b) of the Atomic Energy Act of 1954, 42 U.S.C. § 2134(b) (1964), with a view toward construction of "utilization and production facilities involved in the conduct of research and development activities leading to the demonstration of the practical value of such facilities for industrial or commercial purposes." (For full text of applicable statutes see appendix.) These reactors are to be used by Duke in its production, transmission and sale of electric power. This application, along with certain amendments, was reviewed by the regulatory staff of the Atomic Energy Commission. It found that...
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