INTERNATIONAL UNION OF E., R. & M. WKRS. v. United States

Decision Date10 June 1960
Docket NumberNo. 15271.,15271.
Citation280 F.2d 645
PartiesINTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO; United Automobile Aircraft and Agricultural Implement Workers of America; and United Papermakers and Paperworkers, Petitioners, v. UNITED STATES of America and Atomic Energy Commission, Respondents, Power Reactor Development Company, State of Michigan, Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Benjamin C. Sigal, Washington, D. C., for petitioners.

Mr. Lionel Kestenbaum, Attorney, Atomic Energy Commission, with whom Asst. Atty. Gen. George C. Doub, Messrs. Loren K. Olson, General Counsel, Atomic Energy Commission, Courts Oulahan, Sp. Asst. to the General Counsel, Atomic Energy Commission, and Samuel D. Slade, Attorney, Department of Justice, were on the brief, for respondents.

Mr. W. Graham Claytor, Jr., Washington, D. C., with whom Mr. John Lord O'Brian, Washington, D. C., was on the brief, for intervenor Power Reactor Development Company.

Mr. Jerome Maslowski, Lansing, Mich., entered an appearance for intervenor State of Michigan.

Before EDGERTON, BAZELON, and BURGER, Circuit Judges.

Petitions for Rehearing en Banc Denied July 25, 1960.

EDGERTON, Circuit Judge.

Petitioners seek review of the Atomic Energy Commission's Order of May 26, 1959 which continued in effect, with amendments, a "provisional" construction permit issued August 4, 1956, for a nuclear power reactor. Section 104(b) of the Atomic Energy Act of 1954 authorizes the Commission to issue licenses for "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. In issuing licenses under this subsection, the Commission shall impose the minimum amount of such regulations and terms of license as will permit the Commission to fulfill its obligations under this Act to promote the common defense and security and to protect the health and safety of the public * * *." 68 Stat. 937, 42 U.S. C.A. § 2134(b).

The holder of the construction permit, intervenor here, is the Power Reactor Development Company (PRDC), a Michigan membership corporation organized "to study, develop, design, fabricate, construct and operate one or more experimental nuclear power reactors * * * to the end that there may be an early demonstration of the practical and economical use of nuclear energy for the generation of electrical energy * *." Of PRDC's 21 members, 14 are public utilities and 7 are equipment manufacturers.

The reactor will be the largest, but not the first, "fast breeder" reactor in the United States. The site is at Lagoona Beach, Monroe County, Michigan, on the shore of Lake Erie, 30 miles southwest of Detroit.

Petitioners' Standing

We cannot review the Commission's order at petitioners' request unless (1) it is a "final order" and (2) petitioners are "aggrieved" by it. Atomic Energy Act of 1954, § 189, 42 U.S.C.A. § 2239(b); 5 U.S.C.A. §§ 1032, 1034. Although the Commission's action of May 26, 1959 was entitled "Commission's Opinion, Final Decision and Order," the Commission and PRDC now contend that the order was not final. They also contend that it did not aggrieve the petitioners. In our opinion it was what it purported to be, a final order, and petitioners are "aggrieved" by it. Because it threatens them with economic injury, they "had the requisite standing to appeal and to raise * * * any relevant question of law in respect of the order * * *." Federal Communications Commission v. Sanders Brothers Radio Station, 309 U. S. 470, 477, 60 S.Ct. 693, 698, 84 L.Ed. 1037.

Petitioners are national or international labor unions which intervened, with some of their members, in the proceedings before the Commission, on the basis that "granting the conditional construction permit herein (1) is a violation of the provisions of the Atomic Energy Act of 1954, and the regulations pursuant thereto adopted by the Commission * * * and (2) will result in the construction of a reactor which, under present technological conditions, is inherently unsafe, and which will thereby create a hazard which will place the individual Intervenors, the members of the UAW and their families, and the UAW in danger of an explosion or other incident" damaging to the individuals and their homes, real estate values, and employment; that the value of collective bargaining contracts "will be seriously impaired if the PRDC reactor is built in this area without reasonable assurances of safety"; and that there are "reasonable grounds for relief that a license to operate said facility when it is completed, with an expenditure of $45,000,000 will be issued without proper consideration of and regard for the health and safety of the public."

In their reply brief in this court, petitioners contend that "The fear of a possible atomic catastrophe, in itself, before any operation would begin, would, among other things have the effect of depressing values of property owned by the Petitioners, and would cause plants in which they work under collective bargaining agreements to move and thereby cause a loss of employment." Their reply brief asserts that "the uncontroverted allegations of their petition for intervention before the Commission set forth the economic injury they would suffer merely from the construction of the reactor itself." But we find no such allegations in their petition for intervention before the Commission. The theory of that petition was that construction would cause operation, and operation would cause injury, not that construction without operation would cause injury.1 Judicial review is limited to the record before the Commission. 5 U.S.C.A. § 1037 (a).

As the Commission says in its order, "a construction permit is a step toward a license rather than the equivalent thereof. * * * This permit is provisional to the extent that a license authorizing operation of the facility will not be issued by the Commission unless PRDC has submitted to the Commission (by proposed amendment to the Application) the complete, final Hazards Summary Report (portions of which may be submitted and evaluated from time to time), and the Commission has found that the final design provides reasonable assurance that the health and safety of the public will not be endangered by operation of the facility in accordance with the specified procedures. It is further provisional to the extent that the Commission reserves jurisdiction, at any time prior to issuance of an operating license, upon notice to the parties herein, to reopen this proceeding for the purpose of receiving additional evidence, and to make such determinations and take such action with respect to the continuance, vacation, or modification of this permit as the entire record warrants." But the order also says: "There is reasonable assurance that theoretical and experimental programs under way will develop sufficient data to justify the issuance of an operating license, and that the results of these programs will be available prior to the time it is necessary for the Commission to rule on the operating aspect of the PRDC license Application." PRDC says "it must be taken as settled * * * that the further technical information needed to complete the PRDC application for license will be supplied." Although this positive prediction overstates the matter, it is plainly probable, in a high degree, that if the construction permit stands PRDC will get an operating license and will operate. We think petitioners are therefore aggrieved by the issuance of the permit.

Safety findings required by the Atomic Energy Act

Petitioners contend that "The Act and the regulations of the Commission * * * require, as conditions precedent to the issuance of every construction permit for an atomic energy power reactor, that as of the time the construction permit is issued the Commission find that (1) it has reasonable assurance that the reactor may be constructed and operated at the proposed site without undue risk to the health and safety of the public * * *."

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.

Section 182 of the Atomic Energy Act of 1954, which is headed "License applications", provides in paragraph (a): "* * * In connection with applications for licenses to operate production or utilization facilities, the applicant shall state such technical specifications, including * * * the place of the use * * * and such other information as the Commission may, by rule or regulation, deem necessary in order to enable it to find that the utilization or production of special nuclear material * * * will provide adequate protection to the health and safety of the public. Such technical specifications shall be a part of any license issued. * * *" 42 U.S.C.A. § 2232(a).

It seems to be unquestioned that the phrase used in § 182, "adequate protection to the health and safety of the public", and the Commission's phrase, "without undue risk to the health and safety of the public", are substantially equivalent.

Section 185 of the Act, which is headed "Construction permits", provides: "All applicants for licenses to construct or modify production or utilization facilities shall, if the application is otherwise acceptable to the Commission, be initially granted a construction permit. * * * Upon the completion of the construction or modification of the facility, upon the filing of any additional information needed to bring the original application up to date, and upon finding that the facility authorized has been constructed and will operate in conformity with the application as amended and in conformity with the provisions of this chapter and...

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