Under §§ 104b and 185 of the Atomic Energy Act, the Atomic
Energy Commission issued a provisional construction permit
authorizing a private corporation to construct, but not to operate,
on the shores of Lake Erie about 35 miles from the center of
Detroit and about 30 miles from the center of Toledo, a
fast-neutron breeder reactor for the generation of electric power,
subject to the condition that, before issuance of a license to
operate it, the final hazards summary report must show that
"the final design provides reasonable assurance . . . that the
health and safety of the public will not be endangered by operation
of the reactor."
After three labor unions had intervened and opposed continuation
of the provisional construction permit in effect, the Commission
held extensive hearings, after which it found reasonable assurance
in the record
"that a utilization facility of the general type proposed . . .
can be constructed and operated at the location without undue risk
to the health and safety of the public,"
and it continued in effect the provisional construction permit,
subject to substantially the same condition. The Court of Appeals
set aside the order and remanded the case to.the Commission.
Held: the Court of Appeals erred in setting aside the
Commission's order continuing the provisional construction permit
in effect. Pp.
367 U. S.
398-416.
(a) It is clear from the face of the statute that Congress
contemplated a step-by-step procedure: first, an applicant would
have to get a construction permit, then he would have to construct
his facility, and then he would have to ask the Commission to grant
him a license to operate the facility. Pp.
367 U. S.
403-405.
(b) It is clear from § 182a that, before licensing the operation
of the reactor, the Commission will have to make a positive
finding
Page 367 U. S. 397
that operation of the facility "will provide adequate protection
to the health and safety of the public." Pp.
367 U. S.
405-406.
(c) Under the provisions of the Act and the Commission's
regulations, the Commission proceeded properly in issuing the
provisional construction permit on a finding of reasonable
assurance in the record that a utilization facility of the general
type proposed could be constructed and operated at the location
proposed without undue risk to the health and safety of the public,
and deferring until application for the grant of an operating
license a definitive finding that operation of the facility "will
provide adequate protection for the health and safety of the
public." Pp.
367 U. S.
406-410.
(d) A different conclusion is not required by the legislative
history of the Act. Pp.
367 U. S.
410-414.
(e) Before granting a permit for construction of a reactor near
a large population center, the Commission is not required to find
that there are "compelling reasons" for doing so. P.
367 U. S.
414.
(f) This Court cannot assume that the Commission will exceed its
powers in passing on an application for a license to operate the
reactor or that the many safeguards provided to protect the public
interest will not be fully effective. Pp.
367 U. S.
414-416.
108 U.S.App.D.C. 97, 280 F.2d 645, reversed, and case
remanded.
Page 367 U. S. 398
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case is the first contested licensing proceeding to be
decided by the Atomic Energy Commission under the Atomic Energy Act
of 1954, 68 Stat. 919, 42 U.S.C. § 2011
et seq. It
presents the question whether the Commission erred in continuing in
effect a provisional construction permit which authorizes the
petitioner Power Reactor Development Company to construct, but not
to operate, a fast-neutron breeder reactor for the generation of
electric power. The Court of Appeals for the District of Columbia
Circuit set that order aside. 108 U.S.App.D.C. 97, 280 F.2d 645
(1960). We granted certiorari, 1960, 364 U.S. 889, on petitions of
the United States and of Power Reactor Development Company
(hereafter PRDC), to decide an important question of the scope of
the Commission's power under the Atomic Energy Act of 1954.
Stated more precisely, the question before us is whether the
Commission, in issuing a permit for the construction of a facility
which will utilize nuclear materials, such as the power reactor
presently involved, must make the same definitive finding of safety
of operation as it admittedly will have to make before it licenses
actual operation of the facility. The Court of Appeals said:
"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."
108 U.S.App.D.C. at 100, 280 F.2d at 648. Petitioners agree that
some finding directed to safety of operation must be made at the
construction permit stage of the proceeding, but argue that the
Court of Appeals erred in holding that the Commission must have the
same degree of certitude at this preliminary point as when it
licenses operation. In order to understand how the controversy
arises and what is involved in
Page 367 U. S. 399
its resolution, it will be necessary to state the proceedings in
the case at some length, and then describe in detail the government
statute and administrative regulations. For the decision of this
case ultimately turns on a comparison of what the Commission found
with what the statute and regulations require.
The case began on January 7, 1956, when PRDC filed with the
Commission (hereafter sometimes referred to as the AEC) an
application to construct and operate a developmental power reactor
of a relatively new type. This device has two characteristics which
distinguish it from other nuclear reactors. First, the neutrons
which fly about inside the reactor (to use crude but graphic
layman's terminology) and split atoms of fissionable Uranium-235 --
thus releasing new neutrons and energy in the form of heat -- are
"fast" neutrons. That is, they travel at a velocity of about 10,000
miles per second, much faster than neutrons in ordinary reactors.
Second, this reactor is a "breeder": it has the property of being
able to produce about 1.2 times as much fissionable material as it
consumes. This result comes about through a sort of modern alchemy;
when the neutrons fly outside the inner core of the reactor, which
is composed of fissionable U-235, they enter a blanket of
nonfissionable U-238. Atoms in this blanket are changed, when
struck by a neutron, into Plutonium, itself a fissionable fuel
which can be removed from the reactor and be put to possible use in
other installations. Thus, the reactor "breeds" Plutonium faster
than it uses up U-235. It not only generates energy to produce
electric power, it also creates new reactor fuel. This "breeder"
effect is attainable because of the use of fast neutrons. Two boron
control rods inserted into the reactor are a means designed to
reduce its power level at any time. And, in addition to these rods,
eight more boron rods are suspended by an electromagnet over the
reactor; in case the reactivity rises to a dangerously
Page 367 U. S. 400
high level, these safety rods are intended to drop into the
reactor automatically and shut it down immediately. The whole
machine is housed in a series of thick concrete, graphite, and
steel layers, all underground. Over this entire complex is placed a
football-shaped building, enclosed in a two-inch steel shield
capable of containing an explosion equal in force to 1,000 pounds
of TNT, which is greater than any explosion which any of the
experts who testified in this case believes is at all likely to
result from an accident in the operation of the reactor. The
application, after describing the reactor in much greater detail
than this rudimentary summary, went on to provide that the reactor
would be located at Lagoona Beach, Mich., on the shores of Lake
Erie, about 35 miles from the center of Detroit, Mich., and about
30 miles from the center of Toledo, Ohio.
The Commission took the case under advisement and, on August 4,
1956, despite a report of its Advisory Committee on Reactor
Safeguards which was at best noncommittal about the probable safety
of the proposed reactor in operation, issued a provisional
construction permit without having held public hearings as the law
at that time permitted it to do. This permit was subject to the
following condition:
"The conversion of this permit to a license is subject to
submittal by PRDC to the Commission (by amendment of the
application) of the complete, final Hazards Summary Report
(portions of which may be submitted and evaluated from time to
time). The final Hazards Summary Report must show that the final
design provides reasonable assurance . . . that the health and
safety of the public will not be endangered by operation of the
reactor. . . ."
On August 31, 1956, in accordance with the Commission's then
existing rules of practice, the respondents in
Page 367 U. S. 401
this Court, International Union of Electrical, Radio, and
Machine Workers, United Automobile, Aircraft, and Agricultural
Implement Workers of America, and United Papermakers and
Paperworkers, petitioned the Commission for permission to intervene
and oppose continuation in effect of PRDC's provisional
construction permit. The AEC granted permission to intervene on
October 8, 1956, and set the case down for a hearing before one of
its hearing examiners. Extensive hearings were held between January
8, 1957, and August 7, 1957, and, on November 22, 1957, in
accordance with the AEC's order setting the case for hearing before
him, the examiner, instead of issuing an initial decision and
opinion of his own, transferred and certified the record of the
hearings to the full Commission for its consideration. Oral
argument was had before the Commission on May 29, 1958. On December
10, 1958, the Commission rendered its "Opinion and Initial
Decision" continuing PRDC's permit in effect subject to the same
condition recited above. To its opinion were appended extensive
findings of fact, including Finding 22, which is of central
importance to the decision of this case. That finding reads as
follows:
"22. The Commission finds reasonable assurance in the record
that a utilization facility of the general type proposed in the
PRDC application and amendments thereto can be constructed and will
be able to be operated at the location proposed without undue risk
to the health and safety of the public."
Commissioners Vance and Floberg joined in the opinion.
Commissioner Graham filed a short concurring opinion agreeing with
the Commission's basic safety findings, just quoted, but doing so
in much shorter compass than the majority. Commissioners Libby and
McCone (the chairman) took no part in the decision. The result of
this initial opinion was an order continuing PRDC's provisional
Page 367 U. S. 402
construction permit in effect, but containing the same condition
which the original permit, issued on August 4, 1956, had
contained.
The intervening unions, as was their right, filed detailed
exceptions to this initial decision. The Commission fully
reconsidered all the contentions and reviewed the evidence
presented at the lengthy hearings, with particular attention to the
testimony of the scientific experts, several of them members of the
Advisory Committee on Reactor Safeguards, who had testified. On May
26, 1959, the Commission issued its "Opinion and Final Decision,"
dealing with all questions presented in even greater detail and
reaffirming its initial decision. The Commission emphasized
that
"public safety is the first, last, and a permanent consideration
in any decision on the issuance of a construction permit or a
license to operate a nuclear facility."
Even after operation of the reactor is licensed -- if it ever is
-- the Commission, it said, will retain jurisdiction over PRDC's
activities to ensure that the highest safety standards are
maintained. The opinion went on to examine the suitability of the
proposed site, noted that it was near a great population center,
and nevertheless concluded that, at the present stage, there was
reasonable assurance that the general type of reactor proposed by
PRDC would be safe enough at that location. The Commission pointed
out, however, that its action in allowing PRDC to proceed with
construction was, by its nature, tentative and preliminary, and
that it was by no means committed to the issuance of an operating
license. "PRDC has been on notice since before the first shovel of
dirt was moved," it said,
"that its construction permit is provisional upon further
demonstration of many technological and financial facts, including
the complete safety of the reactor."
A more severe safety test would have to be passed when the
reactor was completed, the opinion said, since
"[t]he degree of 'reasonable assurance' . . .
Page 367 U. S. 403
that satisfies us . . . for purposes of the provisional
construction permit would not be the same as we would require in
considering the issuance of the operating license."
The Commission then made new findings of fact, including the
following counterpart of its initial Finding 22:
"22. The Commission finds reasonable assurance in the record,
for the purposes of this provisional construction permit, that a
utilization facility of the general type proposed in the PRDC
Application and amendments thereto can be constructed and operated
at the location without undue risk to the health and safety of the
public."
All three of the Commissioners who took part in the case joined
in this final decision, and the Commission entered its final order
continuing in effect the PRDC provisional construction permit, but
again subject to the condition that a more extensive safety
investigation, and a definitive safety finding, would have to be
made before operation was permitted.
The intervening unions, respondents in this Court, then
petitioned the Court of Appeals for the District of Columbia
Circuit to review and set aside this order of the Commission. Only
the final order continuing the permit in effect was drawn in
question. No complaint was made of the original
ex parte
grant of the permit in 1956. PRDC intervened in the Court of
Appeals in support of the AEC. On June 10, 1960, by a divided vote,
a three-judge panel of the Court of Appeals set aside the AEC's
order and remanded the case to the Commission. A petition for
rehearing en banc was denied, two judges dissenting, and we brought
the case here.
We turn now to an examination of the statutes and regulations
pursuant to which the Commission purported to continue in effect
PRDC's construction permit. The
Page 367 U. S. 404
basic provision is § 104b of the Atomic Energy Act of 1954, 42
U.S.C. § 2134(b), which authorizes the AEC to
"issue licenses to persons applying therefor for utilization and
production facilities involved in the conduct of research and
development activities. . . . 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 chapter to promote the common
defense and security and to protect the health and safety of the
public. . . ."
Two things about this section should be emphasized. First, there
is no doubt that the term "licenses" as used therein includes the
provisional construction permit which PRDC has received. The last
sentence of § 185, 42 U.S.C. § 2235, expressly so provides, as we
shall soon see. And second, there is also no doubt that
construction permits, like all other licenses, can be issued only
consistently with the health and safety of the public. But the
responsibility for safeguarding that health and safety belongs
under the statute to the Commission. And § 104b, especially when
read in connection with the general rulemaking power conferred by §
161(i)(3), 42 U.S.C. § 2201(i)(3), clearly contemplates that the
Commission shall by regulation set forth what the public safety
requires as a prerequisite to the issuance of any license or permit
under the Act.
The issuance of construction permits is subject to § 185, 42
U.S.C. § 2235. That section provides that
"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. The construction permit shall state the earliest and latest
dates for the completion of the construction or modification.
Unless the construction or modification of the facility is
completed by the completion date, the
Page 367 U. S. 405
construction permit shall expire, and all rights thereunder be
forfeited, unless, upon good cause shown, the Commission extends
the completion date. 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 of the rules
and regulations of the Commission, and in the absence of any good
cause being shown to the Commission why the granting of a license
would not be in accordance with the provisions of this chapter, the
Commission shall thereupon issue a license to the applicant. For
all other purposes of this chapter, a construction permit is deemed
to be a 'license.'"
It is clear from the face of this statute -- and all parties
agree -- that Congress contemplated a step-by-step procedure.
First, an applicant would have to get a construction permit, then
he would have to construct his facility, and then he would have to
ask the Commission to grant him a license to operate the facility.
This procedure is described in its general outlines in Marks and
Trowbridge, Framework for Atomic Industry, 76-77 (1955).
See
also Green, The Law of Reactor Safety, 12 Vand.L.Rev. 112,
121-127 (1958). The second step of the procedure, the application
for and granting of an operating license, is governed by § 182a, 42
U.S.C. § 2232(a). That provision reads, in pertinent part:
"In connection with applications for licenses to operate
production or utilization facilities, the applicant shall state
such technical specifications . . . 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
Page 367 U. S. 406
nuclear material will be in accord with the common defense and
security and will provide adequate protection to the health and
safety of the public."
It is clear from this provision that, before licensing the
operation of PRDC's reactor, the AEC will have to make a positive
finding that operation of the facility will "provide adequate
protection to the health and safety of the public." What is not
clear, and what is at the center of the controversy in this case,
is whether the Commission must also have made such a finding when
it issued PRDC's construction permit. There is nothing on the face
of either § 182 or § 185 which tells us what safety findings must
be made before this preliminary step is taken. We know, however,
from § 104b that some such finding must be made. For enlightenment
on the nature of this finding, both parties urge us to examine the
Commission's regulations, and accordingly we proceed to do so.
The crucial regulation for our purposes is the Commission's
regulation 50.35, 10 CFR § 50.35:
"§ 50.35.
Extended time for providing technical
information. Where, because of the nature of a proposed
project, an applicant is not in a position to supply initially all
of the technical information otherwise required to complete the
application, he shall indicate the reason, the items or kinds of
information omitted, and the approximate times when such data will
be produced. If the Commission is satisfied that it has information
sufficient to provide reasonable assurance that a facility of the
general type proposed can be constructed and operated at the
proposed location without undue risk to the health and safety of
the public and that the omitted information will be supplied, it
may process the application and issue a construction permit on a
provisional basis without the omitted information subject
Page 367 U. S. 407
to its later production and an evaluation by the Commission that
the final design provides reasonable assurance that the health and
safety of the public will not be endangered."
This regulation obviously elaborates upon and describes in
fuller detail the step-by-step licensing procedure contemplated by
§§ 182 and 185. It states, pursuant to the authority conferred by
§§ 104b and 161(i)(3), what safety findings shall be required at
each stage of the proceeding. There is general agreement that the
second safety finding referred to, "that the final design provides
reasonable assurance that the health and safety of the public will
not be endangered," comports with the requirements of § 182
concerning the issuance of a license to operate. There is also
agreement that the regulation's first required safety finding,
"that [the AEC] has information sufficient to provide reasonable
assurance that a facility of the general type proposed can be
constructed and operated at the proposed location without undue
risk to the health and safety of the public,"
is a valid exercise of the rulemaking power conferred upon the
AEC by statute, and requires that some finding as to safety of
operation be made even before a provisional construction permit is
granted. The question is whether that first finding must be backed
up with as much conviction as to the safety of the final design of
the specific reactor in operation as the second, final finding must
be.
We think the great weight of the argument supports the position
taken by PRDC and by the Commission, that Reg. 50.35 permits the
Commission to defer a definitive safety finding until operation is
actually licensed. The words of the regulation themselves certainly
lean strongly in that direction. The first finding is to be made,
by definition, on the basis of incomplete information, and concerns
only the "general type" of reactor proposed.
Page 367 U. S. 408
The second finding is phrased unequivocally in terms of
"reasonable assurance," while the first speaks more tentatively of
"information sufficient to provide reasonable assurance." The
Commission, furthermore, had good reason to make this distinction.
For nuclear reactors are fast-developing and fast-changing. What is
up to date now may not, probably will not, be as acceptable
tomorrow. Problems which seem insuperable now may be solved
tomorrow, perhaps in the very process of construction itself. We
see no reason why we should not accord to the Commission's
interpretation of its own regulation and governing statute that
respect which is customarily given to a practical administrative
construction of a disputed provision. Particularly is this respect
due when the administrative practice at stake
"involves a contemporaneous construction of a statute by the men
charged with the responsibility of setting its machinery in motion;
of making the parts work efficiently and smoothly while they are
yet untried and new."
Norwegian Nitrogen Products Co. v. United States,
288 U. S. 294,
288 U. S. 315
(1933). And finally, and perhaps demanding particular weight, this
construction has time and again been brought to the attention of
the Joint Committee of Congress on Atomic Energy, which, under §
202 of the Act, 42 U.S.C. § 2252, has a special duty during each
session of Congress
"to conduct hearings in either open or executive session for the
purpose of receiving information concerning the development,
growth, and state of the atomic energy industry,"
and to oversee the operations of the AEC.
See, e.g.,
Hearings on Development, Growth, and State of the Atomic Energy
Industry, 84th Cong., 2d Sess., p. 106 (1956); Hearings on
Development, etc., 85th Cong., 2d Sess., pp. 119-121 (1958);
Hearings on Development, etc., 86th Cong., 2d Sess., pp. 103-109,
677-678 (1960); Hearings on Development, etc., 87th Cong., 1st
Sess., pp. 29-32 (1961); Hearings on
Page 367 U. S. 409
Governmental Indemnity for Private Licensees and AEC Contractors
Against Reactor Hazards, 84th Cong., 2d Sess., pp. 62-65 (1956); A
Study of AEC Procedures and Organization in the Licensing of
Reactor Facilities, 85th Cong., 1st Sess., pp. 11-14, 100-108
(Joint Comm. Print 1957). No change in this procedure has ever been
suggested by the Committee, although it has on occasion been
critical of other aspects of the PRDC proceedings not before us. It
may often be shaky business to attribute significance to the
inaction of Congress, but, under these circumstances and
considering especially the peculiar responsibility and place of the
Joint Committee on Atomic Energy in the statutory scheme, we think
it fair to read this history as a
de facto acquiescence in
and ratification of the Commission's licensing procedure by
Congress.
Cf., e.g., Ivanhoe Irr. Dist. v. McCracken,
357 U. S. 275,
357 U. S.
292-294 (1958);
Brooks v. Dewar, 313 U.
S. 354,
313 U. S.
360-361 (1914). This same procedure has been used in
each of the nine instances in which the Commission has granted a
provisional construction permit for a developmental nuclear power
reactor,
e.g., Yankee Atomic Elec. Co., CPPR-5 (AEC 1957),
and we hold that it was properly used in this case.
It is plain that the statute and regulations, as so construed
and applied, were complied with fully. The Commission did not, as
respondents' argument seems at times to suggest, find merely that
the construction of the reactor would present no safety problem.
The Commission's opinion and findings clearly were deeply concerned
about the prospective safety of operation of the proposed reactor.
Admitting that, on the basis of the facts before it, it was unable
to make a definitive finding of safety, the Commission nevertheless
found -- and respondents do not deny that the finding was supported
by substantial evidence -- that it had information sufficient to
provide
Page 367 U. S. 410
reasonable assurance that the general type of reactor proposed
could be operated without undue risk to the health and safety of
the public. Its Finding 22, which we have quoted, was in the very
words of Reg. 50.35, except for the insertion of the phrase, "for
the purposes of this provisional construction permit." This phrase
was merely declaratory of the nature of the proceeding before the
Commission, and in no way denigrated the finding as to safety of
operation.
Respondents contend nevertheless that their construction of the
statute is compelled by the legislative history. Since the Court of
Appeals relied heavily on this history, we have studied it
carefully. Two incidents are cited in particular. First, the Joint
Committee stated in its report on the bill which became the Atomic
Energy Act of 1954, and which when reported contained §§ 182 and
185 in substantially their present shape, that "[s]ection 185 . . .
requires the issuance of a license if the construction is carried
out in accordance with the terms of the construction permit."
S.Rep.No. 1699, 83d Cong., 2d Sess., p. 28 (1954); H.R.Rep.No.
2181, 83d Cong., 2d Sess., p. 28 (1954). The best we can say about
this statement, with all deference, is that it must have been
inadvertent. Witnesses who appeared before the Joint Committee at
the hearings on the bill had made the very complaint that under the
words of the bill as proposed a company might invest large sums in
construction of a reactor, and then be denied the right to operate
it. This situation, they claimed, was unfair, and would
substantially discourage the private investment in the field of
atomic power which it was one of the bill's major purposes to
stimulate.
See Hearings before the Joint Committee on
Atomic Energy on the Bill to Amend the Atomic Energy Act of 1946,
83d Cong., 2d Sess., Pt. I., pp. 113, 119 (statement of Paul W.
McQuillen, representing
Page 367 U. S. 411
the Dow Chemical-Detroit Edison and Associates atomic power
development project, predecessors of PRDC); pp. 226-227 (statement
of E. H. Dixon, chairman of the Committee on Atomic Power of the
Edison Electric Institute and president of Middle-South Utilities,
Inc.); p. 417 (statement of the Special Committee on Atomic Energy
of the Association of the Bar of the City of New York). In spite of
these pleas, however, the bill was unchanged. Industry spokesmen
renewed the argument the next year, when they sought unsuccessfully
to have § 185 amended. Hearings on Development, etc., 84th Cong.,
1st Sess., pp. 258, 261 (1955). Even a glance at § 185 suffices to
show that issuance of a construction permit does not make automatic
the later issuance of a license to operate. For that section sets
forth three conditions, in addition to the completion of the
construction, which must be met before an operating license is
granted: (1) filing of any additional information necessary to
bring the application up to date -- information which will
necessarily in this case include detailed safety data concerning
the final design of petitioner's reactor; (2) a finding that the
reactor will operate in accordance with the act and regulations --
i.e., that the safety and health of the public will be
adequately protected -- and with the construction permit itself,
which is expressly conditioned upon a full investigation and
finding of safety before operation is permitted; and (3) the
absence of any good cause why the granting of a license to operate
would not be in accordance with the Act --
e.g., a showing
by respondent unions, who will have full rights to appear and
contest the issuance of an operating license, that the reactor may
not be reasonably safe.
Respondents rely more heavily on another event during the
debates on this bill on the floor of the Senate. Senator Humphrey,
an opponent of the bill, expressed a
Page 367 U. S. 412
desire that it be made clear that "the construction permit is
equivalent to a license," and that "the revised section 182 on
license application . . . appl[ies] directly to construction
permits." 100 Cong.Rec. 12014 (July 26, 1954). Senator
Hickenlooper, floor manager of the bill and the ranking Senate
member of the Joint Committee on Atomic Energy, indicated that he
agreed with this construction of §§ 182 and 185. Senator Humphrey
wanted these matters made clear, because he feared that otherwise a
construction permit could be easily obtained and substantial
investment made in construction, and then the Commission would feel
obliged, perhaps under pressure, to issue an operating license in
order that this investment should not go to waste. The language
used in the exchange between Senators Humphrey and Hickenlooper is
susceptible, if read broadly and out of context, of the
construction which respondents attribute to it, namely, that no §
185 construction permit may be issued unless the Commission has
made the same "safety of operation" finding which it must make
under § 182a before allowing actual operation. But the context of
the exchange makes it clear that no such implication was intended
by the participants. Senator Humphrey's statements were made during
the consideration of an amendment which he had himself proposed on
July 16. This amendment would have added the following clause to
the end of § 185:
"and no construction permit shall be issued by the Commission
until after the completion of the procedures established by section
182 for the consideration of applications for licenses under this
act."
Upon being assured by Senator Hickenlooper that an earlier
amendment which Senator Hickenlooper himself had offered to § 189
took care of the problem, Senator Humphrey withdrew his proposal.
This amendment to
Page 367 U. S. 413
§ 189, which was adopted, was concerned solely with hearings and
judicial review. Plainly, Senator Humphrey's concern was not with
the substantive safety findings necessary to the issuance of a
construction permit, but rather with the procedural safeguards with
which that issuance should, in his opinion, be surrounded. The
reference to the application of § 182 to construction permits was
made not with § 182a in mind -- that subsection sets out the
substantive safety standard for the issuance of an operating
license -- but rather with a view to the application of § 182b,
about which Senator Humphrey particularly asked Senator
Hickenlooper during the exchange on the floor referred to, and
which merely provides that notice of a license application must be
published and given to any appropriate regulatory agencies, a
procedural requirement which was fully satisfied in this case. This
interpretation of the meaning of Senator Humphrey's remarks is
borne out by a statement of Representative Holifield, who, together
with Representative Price, had dissented from the favorable report
of the Joint Committee, precisely because,
inter alia,
under the bill as reported, a construction permit did not have to
be preceded by the same procedures as an operating license.
See S.Rep.No. 1699, 83d Cong., 2d Sess., p. 123 (1954);
H.R.Rep.No. 2181, 83d Cong., 2d Sess., p. 123 (1954).
Representative Price wanted the same amendment added to § 185 which
Senator Humphrey proposed, and he characterized this amendment as
necessary to ensure "that the same procedural safeguards in the
case of licenses be applied to construction permits." 100 Cong.Rec.
10959 (July 19, 1954). We think, therefore, that Senator Humphrey's
statement referred only to procedural prerequisites of construction
permits, and had nothing to do with the substantive safety
considerations which this case involves. If there were any doubt
about this matter, the
Page 367 U. S. 414
consistent administrative practice, made known to Congress many
times and never disturbed by it, would dictate this conclusion.
The Court of Appeals put forward as an alternative basis for its
decision the holding that, under the law, the Commission may not
authorize the construction of a reactor near a large population
center without "compelling reasons" for doing so, 108 U.S.App.D.C.
at 103-104, 280 F.2d at 651-652, and that no such reasons had been
found by the AEC in this case. It is not clear whether respondents
have abandoned that contention in this Court, and it is likewise
uncertain whether they ever presented it to the Commission, a step
which would ordinarily be a prerequisite to its consideration by
the Court of Appeals. In any event, the position is without merit.
The statute and regulations say nothing about "compelling reasons."
Of course, Congress (and the Commission, too, for that matter) had
the problem of safety uppermost in mind, and, of course, that
problem is most acute when a reactor, potentially dangerous, is
located near a large city. But the Commission found reasonable
assurance, for present purposes, that the reactor could be safely
operated at the proposed location, and that is enough to satisfy
the requirements of law. The Commission recognized that the site
and all its properties are among the most important ingredients of
a finding of safety
vel non. It considered the site along
with all the other relevant data. There is no warrant in the
statute for setting aside the Commission's conclusion.
We hold, therefore, that the Court of Appeals erred in setting
aside the order of AEC continuing PRDC's provisional construction
permit in effect. We deem it appropriate to add a few words
concerning the fears of nuclear disaster which respondents so
urgently place before us. The respondents' argument is tantamount
to
Page 367 U. S. 415
an insistence that the Commission cannot be counted on, when the
time comes to make a definitive safety finding, wholly to exclude
the consideration that PRDC will have made an enormous investment.
The petitioners concede that the Commission is absolutely denied
any authority to consider this investment when acting upon an
application for a license for operation. PRDC has been on notice
long since that it proceeds with construction at its own risk, and
that all its funds may go for naught. With its eyes open, PRDC has
willingly accepted that risk, however great. No license to operate
may be issued to PRDC until a full hazards report has been filed,
until the AEC's Advisory Committee on Reactor Safeguards makes a
full investigation and public report on safety to the Commission,
until the Commission itself, after notice and hearings at which
respondents, if they desire, may be heard, has made the "safety of
operation" finding required by § 182a and Reg. 50.35, and until the
other requirements of § 185 have been met. It may be that an
operating license will never be issued. If one is, that will not be
the end of the matter. The respondents may have judicial review.
Moreover, the Commission's responsibility for supervision of PRDC
continues. For, under Reg. 50.57, 10 CFR § 50.57, operation at full
power (100,000 electric kilowatts) will not be permitted until
several steps of gradually increasing operation have been
successfully mastered, with a full public hearing at each step, and
no further advance permitted without the AEC's being fully
satisfied that a step-up will meet the high safety standards
imposed by law. This is the multi-step scheme which Congress and
the Commission have devised to protect the public health and
safety. We hold that the actions of the Commission up to now have
been within the Congressional authorization. We cannot assume that
the Commission will exceed its powers, or that these
Page 367 U. S. 416
many safeguards to protect the public interest will not be fully
effective.
Accordingly, the judgment is reversed, and the causes are
remanded to the Court of Appeals for further proceedings consistent
with this opinion.
Reversed and remanded.
* Together with No. 454,
United States et al. v.
International Union of Electrical, Radio and Machine Workers,
AFL-CI0, et al., also on certiorari to the same Court.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
The only requirement in the Act for a finding that the
facilities involved here "will provide adequate protection to the
health and safety of the public" is found in § 182, which is headed
"License Applications." [
Footnote
1] By the terms of § 185, a construction permit is, apart from
the requirements of § 185, "deemed to be a
license.'" [Footnote 2] Section 185 governs
applications for construction permits. It has no separate or
independent standards for safety, no specific requirement for a
finding on "safety." If the facility is finished and will operate
"in conformity with" the Act, the license issues
"in the absence of any good cause being shown to the Commission
why the granting of a license would not be in accordance with the
provisions of"
the Act. As the Committee Report stated,
"Section 185 . . .
requires the issuance of a license
if the construction is carried out in accordance with the terms of
the construction permit. [
Footnote
3]"
In other words, the finding on "safety," if it is to be made (as
it assuredly must be), must be made at the time the construction
permit is issued, or not at all.
While, in the present case, the Commission "finds reasonable
assurance in the record, for the purposes of this provisional
construction permit," that the facility can be operated "without
undue risk to the health and safety of
Page 367 U. S. 417
the public," it also finds that "[i]t has not been positively
established" that a facility of this character "can be operated
without a credible possibility of releasing significant quantities
of fission products to the environment." The Commission added that
there was "reasonable assurance" before the date when the facility
went into operation that research and investigation would
definitely establish "whether or not the reactor proposed by
Applicant can be so operated."
Plainly these are not findings that the "safety" standards have
been met. They presuppose -- contrary to the premise of the Act --
that "safety" findings can be made
after construction is
finished. But when that point is reached, when millions have
been invested, the momentum is on the side of the applicant, not on
the side of the public. The momentum is not only generated by the
desire to salvage an investment. No agency wants to be the
architect of a "white elephant." Congress could design an Act that
would give a completed structure that momentum. But it is clear to
me it did not do so.
When this measure was before the Senate, Senator Humphrey
proposed an amendment that read,
"no construction permits shall be issued by the Commission until
after the completion of the procedures established by section 182
for the consideration of applications for licenses under this act.
[
Footnote 4]"
That amendment would plainly have made the present findings
inadequate, for they leave the issue of "safety" wholly in
conjecture and unresolved.
Senator Humphrey explained his amendment as follows: [
Footnote 5]
"The purpose of the amendment when it was prepared was to make
sure that the construction of a facility was not permitted prior to
the authorization
Page 367 U. S. 418
of a license, because, had that been done, what it would have
amounted to would be getting an investment of a substantial amount
of capital, which surely would have been prejudicial in terms of
the Commission issuing the license. In other words, if the
Commission had granted the construction permit for some form of
nuclear reactor, and then the question of a license was not fully
resolved, surely there would have been considerable pressure, and
justifiably so, for the Commission to have authorized the license
once it had authorized the permit for construction."
"The chairman of the committee tells me he has modified certain
sections by the committee amendments to the bill, of which at that
time I was not aware. The chairman indicates to me that, under the
terms of the bill, as amended, the construction permit is
equivalent to a license. In other words, as I understand, under the
bill, a construction permit cannot be interpreted in any other way
than being equal to or a part of the licensing procedure. Is that
correct?"
His question was answered by Senator Hickenlooper, who was in
charge of the bill: [
Footnote
6]
"A license and a construction permit are equivalent. They are
the same thing, and one cannot operate until the other is
granted."
"The same is true with reference to hearings. Therefore, we
believe, and we assure the Senator, that the amendment is not
essential to the problem which he is attempting to reach."
Senator Humphrey then asked if § 182 applied "directly to
construction permits." [
Footnote
7] Senator Hickenlooper
Page 367 U. S. 419
replied "Yes." [
Footnote 8]
Senator Humphrey accordingly withdrew his amendment. [
Footnote 9]
This legislative history makes clear that the time when the
issue of "safety" must be resolved is before the Commission issues
a construction permit. The construction given the Act by the
Commission (and today approved) is, with all deference, a
light-hearted approach to the most awesome, the most deadly, the
most dangerous process that man has ever conceived. [
Footnote 10]
[
Footnote 1]
See Appendix to this opinion,
post, p.
367 U. S.
419.
[
Footnote 2]
Ibid.
[
Footnote 3]
1 Leg.Hist. 1024. (Emphasis added.)
[
Footnote 4]
3 Leg.Hist. 3759.
[
Footnote 5]
Ibid.
[
Footnote 6]
Ibid.
[
Footnote 7]
Ibid.
[
Footnote 8]
Ibid.
[
Footnote 9]
Ibid.
[
Footnote 10]
See Biological and Environmental Effects of Nuclear
War, Summary -- Analysis of Hearings, June 22-26, 1959, Joint
Committee on Atomic Energy, 86th Cong., 1st Sess.; Fallout From
Nuclear Weapons Tests, Summary -- Analysis of Hearings, May 5-8,
1959, Joint Committee on Atomic Energy, 86th Cong., 1st Sess. For
an analysis of the administrative law techniques used by the
Commission in this case,
see Jalet, A Study in
Administrative Law, 47 Georgetown L.J. 47 (1958).
|
367
U.S. 396app|
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS
Section 182a provides in relevant part:
"LICENSE APPLICATIONS. --"
"a. Each application for a license hereunder shall be in writing
and shall specifically state such information as the Commission, by
rule or regulation, may determine to be necessary to decide such of
the technical and financial qualifications of the applicant, the
character of the applicant, the citizenship of the applicant, or
any other qualifications of the applicant as the Commission may
deem appropriate for the license. In connection with applications
for licenses to operate production or utilization facilities, the
applicant shall state such technical specifications, including
information of the amount, kind,
Page 367 U. S. 420
and source of special nuclear material required, the place of
the use, the specific characteristics of the facility, 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 be in accord with
the common defense and security and will provide adequate
protection to the health and safety of the public. Such technical
specifications shall be a part of any license issued."
Section 185 provides:
"CONSTRUCTION PERMITS. -- 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. The construction permit
shall state the earliest and latest dates for the completion of the
construction or modification. Unless the construction or
modification of the facility is completed by the completion date,
the construction permit shall expire, and all rights thereunder be
forfeited, unless upon good cause, the Commission extends the
completion date. 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 Act and of the rules and
regulations of the Commission, and in the absence of any good cause
being shown to the Commission why the granting of a license would
not be in accordance with the provisions of this Act, the
Commission shall thereupon issue a license to the applicant. For
all other purposes of this Act, a construction permit is deemed to
be a 'license.'"