Easton Utilities Commission v. Atomic Energy Commission, No. 22184.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtTAMM, Circuit
PartiesThe EASTON UTILITIES COMMISSION, Petitioner, v. ATOMIC ENERGY COMMISSION and United States of America, Respondents, Philadelphia Electric Co. et al., Intervenors.
Docket NumberNo. 22184.
Decision Date10 February 1970

424 F.2d 847 (1970)

The EASTON UTILITIES COMMISSION, Petitioner,
v.
ATOMIC ENERGY COMMISSION and United States of America, Respondents,
Philadelphia Electric Co. et al., Intervenors.

No. 22184.

United States Court of Appeals, District of Columbia Circuit.

Argued January 9, 1969.

Reargued June 26, 1969.

Decided February 10, 1970.


424 F.2d 848

Mr. Spencer W. Reeder, St. Michaels, Md., for petitioner.

Mr. Marcus A. Rowden, Asst. Gen. Counsel, Atomic Energy Commission, with whom Messers. Charles M. Farbstein and William C. Parler, Attys., Atomic Energy Commission, were on the brief, for respondents. Messrs. Howard K. Shapar, Asst. Gen. Counsel, Thomas F. Engelhardt, Atty., Atomic Energy Commission, and Howard E. Shapiro, Atty., Dept. of Justice, also entered appearances for respondents.

Mr. Arvin E. Upton, Washington, D. C., with whom Messrs. Leonard M. Trosten and Eugene J. Bradley, Washington, D.C., were on the brief, for intervenors.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON and ROBB, Circuit Judges.

TAMM, Circuit Judge:

This court's order of April 2, 1969 consolidated this case with cases No. 21,706, Cities of Statesville v. AEC, and No. 21,844, Power Planning Comm. of the Municipal Elec. Ass'n of Massachusetts v. AEC, for en banc argument and consideration. By our opinion of December 5, 1969, we ruled upon the issues involved in the companion cases but reserved consideration of the present case for a separate opinion because of the existence herein of a problem not common to the other cases.

I

The petitioner before us, Easton Utilities Commission, is "authorized to engage in the distribution of electric energy" (Brief for Petitioner at 5) and presently generates all the power that it distributes and sells within the municipality of Easton and its environs. It is not a customer of any of the intervenors nor is it a competitor or in any other way associated with any of those parties. It has, however, been instructed by the Maryland Public Service Commission to study "`the effect on its service and on its economy of operation of effecting an interconnection with another electric generating system'" (Tr. 2608).

The intervenors in this proceeding, Philadelphia Electric Company, Public Service Electric and Gas Company, Delmarva Power and Light Company, and Atlantic City Electric Company, are utility companies operating in the Pennsylvania, New Jersey, Maryland interstate power interconnection known as the P. J.M. Pool.

The respondent Atomic Energy Commission (hereinafter "Commission") is the government agency established by Congress (42 U.S.C. §§ 2011-2296 (1964)) to control the utilization of nuclear power including the granting, suspending, revoking or amending of any license or construction permit encompassing atomic energy as a source of fuel or power.

II

On February 10, 1967, intervenor Philadelphia Electric Company, acting on its own behalf and as a representative of the other three intervenors herein, filed an application with the Atomic Energy Commission for licenses to construct, and later to operate, two nuclear reactors to be located at the Peach Bottom Atomic Power Station of the Philadelphia Company in York, Pennsylvania. The application was filed pursuant to section 104(b) of the Atomic Energy

424 F.2d 849
Act, 42 U.S.C. § 2134(b) (1964), which authorizes the Commission to issue licenses for, inter alia, "utilization * * * 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." The proposed reactors are to be singlecycle, forced circulation, boiling water reactors, each having an initial power rating of 3295 thermal megawatts (1065 electric megawatts) and a somewhat higher ultimate expected power level. The proposed facilities would be owned by all four intervenors as tenants in common with specified undivided interests, and these participants would use the facilities for the generation and ultimate sale of electricity

The application, upon review by the regulatory staff of the Commission, was found to meet all requirements for the issuance of construction permits, specifically the standards of the Act as implemented by the Commission's regulations relating to the public health and safety, common defense and security (Tr. 2565-2566).

On November 1, 1967, following, of course, the review outlined above, the Commission issued a notice of hearing, which was published in the Federal Register on November 3, 1967, 32 Fed.Reg. 15,403. The notice advised that a public hearing would be held to consider the application for provisional construction permits on December 7, 1967, at a specified location contiguous to the site of the proposed facilities. The notice described the issues to be considered and initially decided by an Atomic Safety and Licensing Board under 42 U.S.C. § 2241 (1964), as a basis for the ultimate determination of whether provisional construction permits should be granted. Included in the notice of hearing were the requirements for leave to intervene as established by the Commission's Rules of Practice, 10 C.F.R. § 2.714 (1969). The notice also stated affirmatively that petitions to intervene "must be received" by the Commission "not later than November 16, 1967" and warned that "a petition for leave to intervene, which is not timely filed will be denied unless the petitioner shows good cause for failure to file it on time." (32 Fed.Reg. at 15,404.)

On November 16, 1967, the City of Dover, Delaware, acting in the capacity of a municipal customer of one of the applicants, filed a petition to intervene in the proceedings. By its petition the City of Dover challenged the authority of the Commission to grant the licenses applied for by Philadelphia Electric Company under the provisions of section 104(b) of the Act. Pursuant to a memorandum and order issued by the Commission which stated that the Commission considered a grant of intervention appropriate, the Board by an order dated December 6, 1967, granted intervention to the City of Dover.

At the hearing conducted by the Board on December 7 and 8, 1967, the City of Dover participated and presented its case challenging the Commission's jurisdiction under section 104(b). The hearing was devoted both to the safety and national security issues specified for hearing as well as the question of licensability of the projects under the provisions of section 104(b).

The Safety and Licensing Board on January 29, 1968, rendered its initial decision in which it ordered the issuance of the provisional permits to the applicants permitting the undertaking of the project construction. The findings of the Board were favorable to the applicants on all issues heard including, of course, the propriety of the license issuance under section 104(b). Pursuant to 10 C.F.R. § 2.764 the initial decision was made immediately effective, subject to review by the Commission, and on January 31, 1968, the provisional construction permits were issued and the construction of the reactors was thereafter undertaken.

Still contending that the Commission lacked jurisdiction to license the reactors under section 104(b) of the Act, the City of Dover filed exceptions to the initial

424 F.2d 850
decision, arguing in substance that since the facilities were to be sold by the manufacturer and bought by the applicants for use in the normal course of business, and without government subsidy, the project was without the authorization of section 104(b)

On June 5, 1968, the Commission denied the City of Dover's exceptions. Relying upon its own earlier ruling in the Matter of Duke Power Company, AEC Docket...

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26 practice notes
  • Akzo N.V. v. U.S. Intern. Trade Com'n, No. 86-877
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 22, 1986
    ...deVyver v. Warden, U.S. Penitentiary, 388 F.Supp. 1213, 1222 (M.D.Pa.1974) citing Easton Utilities Commission v. Atomic Energy Commission, 424 F.2d 847, 852 (D.C.Cir.1970). Whatever else Sec. 555(b) guarantees to parties to an administrative proceeding under Sec. 337, it does not mandate di......
  • Ricci v. Chicago Mercantile Exchange, No. 71-858
    • United States
    • United States Supreme Court
    • January 9, 1973
    ...ability to invoke this provision is, however, problematical at best. Cf. Easton Utilities Comm'n v. AEC, 137 U.S.App.D.C. 359, 362—365, 424 F.2d 847, 850—853 (1970). See generally Shapiro, Some Thoughts on Intervention before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 764—767 (1......
  • State of North Carolina v. FEDERAL POWER COM'N, No. C-74-391-W.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • May 7, 1975
    ...it is true they will not be allowed to intervene in the Court of Appeals, Easton Utilities Commission v. A.E.C., 137 U.S.App.D.C. 359, 424 F.2d 847 (1970), the interests of the individual plaintiffs have not been, nor will they be, unrepresented.16 The State of North Carolina, a party to th......
  • Buckner Trucking, Inc. v. United States, Civ. A. No. 71-H-531.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 23, 1973
    ...reconsider the applications on their merits. Similarly, in Easton Utilities Commission v. Atomic Energy Commission, 137 U.S.App.D.C. 359, 424 F.2d 847, 851 (1970), it was indicated We have long and frequently passed upon the limitations of judicial review which we exercise in agency cases i......
  • Request a trial to view additional results
25 cases
  • Akzo N.V. v. U.S. Intern. Trade Com'n, No. 86-877
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 22, 1986
    ...deVyver v. Warden, U.S. Penitentiary, 388 F.Supp. 1213, 1222 (M.D.Pa.1974) citing Easton Utilities Commission v. Atomic Energy Commission, 424 F.2d 847, 852 (D.C.Cir.1970). Whatever else Sec. 555(b) guarantees to parties to an administrative proceeding under Sec. 337, it does not mandate di......
  • Ricci v. Chicago Mercantile Exchange, No. 71-858
    • United States
    • United States Supreme Court
    • January 9, 1973
    ...ability to invoke this provision is, however, problematical at best. Cf. Easton Utilities Comm'n v. AEC, 137 U.S.App.D.C. 359, 362—365, 424 F.2d 847, 850—853 (1970). See generally Shapiro, Some Thoughts on Intervention before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 764—767 (1......
  • State of North Carolina v. FEDERAL POWER COM'N, No. C-74-391-W.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • May 7, 1975
    ...it is true they will not be allowed to intervene in the Court of Appeals, Easton Utilities Commission v. A.E.C., 137 U.S.App.D.C. 359, 424 F.2d 847 (1970), the interests of the individual plaintiffs have not been, nor will they be, unrepresented.16 The State of North Carolina, a party to th......
  • Buckner Trucking, Inc. v. United States, Civ. A. No. 71-H-531.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 23, 1973
    ...reconsider the applications on their merits. Similarly, in Easton Utilities Commission v. Atomic Energy Commission, 137 U.S.App.D.C. 359, 424 F.2d 847, 851 (1970), it was indicated We have long and frequently passed upon the limitations of judicial review which we exercise in agency cases i......
  • Request a trial to view additional results

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