Earl Warren: Number 315, Power Reactor Development Company, Petitioner, versus International Union of Electrical, Radio and Machine Workers, et al. and Numbers 454 United States, et al., Petitioners, versus International Union of Electrical, Radio and Machine Workers.
Benjamin C. Sigal: Mr. Chief Justice.
Earl Warren: Mr. Sigal, you may continue.
Benjamin C. Sigal: May it please the Court. The greatest potential hazard in the operation of a power reactor lies in the possibility that the accumulation of fission products, radioactive fission products imprisoned in the fuel in the course of the operation of the reactor might somehow, including a breach of the containment, that is the shell that covers the reactor, be released into the atmosphere, be distributed by the wind and contaminate both the land and the -- the entire inhabited area. These fission products are more toxic than any industrially known materials by a factor of a million to 8 billion. Now, a report prepared for the Commission and presented in this case, concludes that the possible damage from a major accident in a large nuclear power plant of a -- one of the size of the plant involved in this case, which containment may go up to $7 billion, kill 3400 people, injure 43,000 people and lay waste to scores of thousands of square miles of land. Now, these are not the maximum possibility. The same report which provided these estimates stated also that in special weather conditions which occur about 5% of the time that if such an accident occurs during such conditions, the damages would be greater, but there is now, no known way of estimating such damages.
Earl Warren: Mr. Sigal before you get farther into that subject, I -- I don't quite -- I don't believe I quite got your point yesterday, just at the conclusion of the session when you were discussing whether or not, the Government could change the requirements after the -- the permit to construct and before the permit to operate the reactor. What just -- just what is your position on that? What -- what changes can they make if any?
Benjamin C. Sigal: Well, is -- is your question as to whether the Government can make changes?
Earl Warren: Well --
Benjamin C. Sigal: I don't argue -- it wasn't the word that that question was raised?
Earl Warren: Well, as I -- as I understood you, I may have been wrong, but as I understood you that after the Government had once issued this permit to construct the plant that it is powerless to change the -- the -- requirements for it.
Benjamin C. Sigal: Oh, no. No, I -- if I --
Earl Warren: Alright, is there any limitation on what they can do to make it more safe?
Benjamin C. Sigal: No, I -- something I said gave you an impression, certainly had no such intention. It must be understood that these reactors are built pursuant to applications by private parties who want to build certain types of reactors.
Earl Warren: Yes.
Benjamin C. Sigal: And they asked for permission to -- for a construction permit and they themselves, set forth the specifications of the reactor.
Earl Warren: Yes.
Benjamin C. Sigal: And then the -- the Commission must determine whether or not, it is satisfied that those specifications when will be -- provide a safe reactor before they will -- in our view, before they can issue a permit. Now, the Government itself, at least not to my knowledge, will not of its own initiative request a change in the specifications. That would come about only if it appeared that the specifications which the applicant prescribed did not provide a safe reactor. The -- the -- very -- the consultants, the Commission and so forth, may suggest that in order to solve a given safety question, certain things should be done. It's not a question of requiring the applicant to do certain things, but of course, of making suggestions of how to solve a given safety problem. Now, if the problem isn't solved, there will be no -- there will be no license presumably, if it's a -- if it's a major factor.
Earl Warren: Well, I -- I understood the Solicitor General to say that when the -- when the Government gave permission to construct this reactor, that it was basing its action upon present knowledge. That this is an evolving science and -- and maybe before the plant is constructed, there will be much greater knowledge and much better knowledge on -- on how to protect the public and that the Government reserves the right on issues that -- that the construction permit to require the contractor or -- or the -- the builder to conform as of the time, conform to the best knowledge they have as of the time that is to be operated and -- and they take the chance financially of a change in -- in knowledge, so that if -- if become more expensive or this is found to be unsafe, why, they're the losers, but the Government seeks to protect the public in that way. Now, that's -- that's generally the way I understood the Solicitor General.
Benjamin C. Sigal: Well, --
Earl Warren: I --I --
Earl Warren: And I thought you didn't agree with that.
Benjamin C. Sigal: So far as I know, Mr. Chief Justice, the -- that the question does not arise in that way. I mean that if a party -- an applicant wants to build a given type of reactor, that's his business. And the business of the Commission is to determine whether that particular type is safe. Now, the Commission may say that particular type isn't safe. We will not issue a license for it. Then it's up to the applicant to go ahead and make the changes which will in the opinion of the Commission, be safe -- allows safe operation. But the Commission does not, so far as I know, I don't think it -- it claims the authority of saying to the applicant, you must make changes which will change the type for example of the reactor that you build, because we have information which will indicate that that's the best type of reactor.
Earl Warren: But does it have the -- have the power when the plant is constructed to say now on -- on the basis of knowledge we now have, this is not safe therefore, you cannot operate.
Benjamin C. Sigal: They have that authority, yes.
Earl Warren: They have that authority.
Benjamin C. Sigal: They say we will -- we will not -- we will not permit you to operate this if on the basis of your plant as you now have it, as you have prepared it, built it, it is not safe. But I think it must -- this must be borne in mind, the -- the construction permit sets forth the conditions. Now, if the -- as we see it, the -- that is why it is essential that the aide -- that the Commission make a finding at the start, before there is an investment of $50 or $100 million. It -- it is essential and the law requires that the Commission make a finding whether it issues the construction permit, with the various conditions in that permit that when the permit -- when the conditions are satisfied, that the applicant will be allowed to operate. Now, that --
Earl Warren: Well, I -- I understood the Solicitor General to say they took this permit at their peril and -- and if it later developed, that it wasn't a safe way to do it, they -- they couldn't operate.
Benjamin C. Sigal: Well, that we say is --
Earl Warren: Even though they have the permit.
Benjamin C. Sigal: In our view, that is not in the contemplation of the law.
Earl Warren: Yes. That's right. That's all I want to know what the difference (Voice Overlap) --
Benjamin C. Sigal: Yes. It is our view that the -- that Congress intended that once a construction permit was granted, the applicant does not go forward at his peril. He is not asked to spend the $100 million and then be told that we have -- we -- we can change it as we see fit, because we -- after all, we did make any finding on the question of safety.
Felix Frankfurter: For me to be very specific and concrete, you mean if this permit were allowed to stand, they would have to give him a -- an operation of permit subjectly?
Benjamin C. Sigal: No, the Commission says, it is not obliged to do so.
Felix Frankfurter: I'm not talk -- I'm not talking about the condition, I want to know what you think.
Benjamin C. Sigal: In --
Felix Frankfurter: Because I understood your answer to the Chief Justices' question just now to necessarily imply that. That the law didn't mean people to spend $100 million and then have their request for an operational permit rejected.Isn't that what is your answer to the Chief Justice?
Benjamin C. Sigal: Yes, yes. But the law also contemplates that the necessary finding would be made prior to the time construction began.
Felix Frankfurter: I understand that.
Benjamin C. Sigal: Yes.
Felix Frankfurter: What I want to know is whether you'd say that if this grant --this permit stands, they must give him an operation of thing.
Benjamin C. Sigal: But they didn't make the finding, Your Honor, (Voice Overlap) that's -- that's the problem.
Felix Frankfurter: But just -- would you be good enough to take my assumption that this Court finds that the Commission satisfies the requirements of the statute, just make that assumption. I understand correctly or not, that if that is allowed to stand, your view is that they would have to be granted the operational permit.
Benjamin C. Sigal: If they have complied with the construction permit. I'm sorry, Your Honor, I cannot ask -- answer the question by a yes or no, because the -- the law, the regulations say, "You must comply with the conditions of the construction permit."
Felix Frankfurter: Mr. Sigal, my -- my question assumed that this Court would find that they had complied with the law. And therefore, that there was a compliance with the law and my -- on that assumption, your answer is that they would hereafter have to give them an operational grant. Is that right?
Benjamin C. Sigal: Mr. -- Mr. Justice Franker, I fairly understand --
Felix Frankfurter: If you don't want to answer, don't.
Benjamin C. Sigal: I don't understand your question then, because that determination cannot be made until construction is completed. No, If I understand your question, it is if the Commission has complied with the law now, they must give them -- permit them to operate. That's only half of the matter. The applicant must go forward and complete construction. Now, if your question is that on the basis of the present permit in this case, if the applicant goes forward and completes construction on the basis of those conditions, yes, then it is our answer that the Commission is obliged to --
Felix Frankfurter: Of course if they haven't completed it, they haven't completed it, therefore, they can't operate.
Benjamin C. Sigal: Yes.
William O. Douglas: But your --
Felix Frankfurter: I'd assume that they would operate.
William O. Douglas: But your -- your recommend is on a quite a different plain I think, less than anything has been exposed so far because I understand it, your -- your conclusion is -- your supposition is that the same findings are necessary for the construction permit that are necessary for the license.
Benjamin C. Sigal: The same formula.
William O. Douglas: Yes. Is that right?
Benjamin C. Sigal: That's right. The same formula, that is that we -- at the time of --
William O. Douglas: Therefore the construction permit didn't issue on their -- on the proper findings therefore, if this construction was finished, under this permit, a license couldn't issue because the necessary findings were never made.
Felix Frankfurter: But if this Court holds that the findings were satisfy, then the necessarily findings were made.
William O. Douglas: Then you've lost your case. [Laughter]
William O. Douglas: I think that's --
Felix Frankfurter: And well, how will I know about the consequences of that loss?
Benjamin C. Sigal: That is the question.
Felix Frankfurter: I want to know the consequences of that loss and you've stated it if I can understand English language, that this case is reversed on the ground that the Commission did satisfy the duty it had under the statute and the plant is finished and operational permit must be granted.
Benjamin C. Sigal: If the -- if the construction conditions were met, yes.
Hugo L. Black: I'm a little confused, now. I don't want to do add an execution to it. But I'm looking now at the section on page 135 of the Government brief, 50, 35. It is your view that the Government, that the Commission did or did not find that make the findings with reference to and evaluation by the Commission that the final design provides reasonable assurance that the health and safety of the public will not be endangered. Do you think they did or did not make that finding as required by that condition?
Benjamin C. Sigal: Well, Mr. Justice Black, the finding that we say is required appears in the middle of that the paragraph. You see that there are two findings indicated in that paragraph.
Hugo L. Black: What's that?
Benjamin C. Sigal: The first finding which we say was not complied -- was not made was the one that appears in the beginning of that section. If the Commission is satisfied that it has information sufficient to provide reasonable assurance that a facility of a general type proposed can be constructed and operate -- operated at the proposed location without under risk for the health and safety of the public, it may process the application.
Hugo L. Black: Now, you say that they have or have not made that finding?
Benjamin C. Sigal: We say they have not made it.
Hugo L. Black: And you say that's necessary whether it is a construction permit or a construction and an operation permit or just an operation permit.
Benjamin C. Sigal: Well, Your Honor --
Hugo L. Black: Is that it?
Benjamin C. Sigal: That's not possible. No, what I mean is --
Hugo L. Black: So what do you say about this?
Benjamin C. Sigal: This is intended for construction permits. This -- well, this applies only through construction permits, this -- this requirement that I have just read.
Hugo L. Black: If that finding has been made there, is it your argument that that is enough to allow them to operate the plant?
Benjamin C. Sigal: No. It is not an enough because that is made prior to the time that it's supposed to be made, prior to the time that construction begins. Now, the Commission does not -- does not ask to assume that the applicant is going to comply with all of the conditions of a construction permit. So, that when they have completed construction, then you get down to the bottom of that paragraph and then, the Commission makes an evaluation of the situation at the time that the construction is completed and then the -- it must determine as the language there says, does the final design provide reasonable assurance that the health and safety of the public will not be endangered. Now, that -- we say then.
Hugo L. Black: Well, has that finding been made?
Benjamin C. Sigal: No, because the construction hasn't been completed yet. They haven't got to that point yet. You see our -- our position is -- is this provides in accordance with the law as -- as agrees a two-step procedure. First, the construction pursuant to a construction -- to an issuance of a construction permit and then after the construction is completed in accordance with those conditions, then a determination whether or not those conditions had been fulfilled. And if they are fulfilled and the Commission then makes a finding that the final design will provide -- will make reasonable assurance for the health and safety of the public, then they are permitted to operate.
Hugo L. Black: So why then do you say -- I hate to ask you too many questions but I -- I'm a little confused.
Benjamin C. Sigal: That's alright.
Hugo L. Black: Why then do you say that -- if this -- do you say this first finding has not been made?
Benjamin C. Sigal: That's right.
Hugo L. Black: You, therefore, say they do not have any right to get a construction permit?
Benjamin C. Sigal: That's right.
Hugo L. Black: And yet, I understood you to say that to go on further than that and say that they nevertheless have issued a permit which would permit operation of the plant, even without ever proving this latter part?
Benjamin C. Sigal: Oh, I never said that. That's the contention of the -- of the petitioners. We never claimed that this first finding is enough to permit them to operate after it's -- after it's finished.
Felix Frankfurter: Neither does the Solicitor General.
Benjamin C. Sigal: Well, their briefs claim that we said that. And we -- we have never done it. They -- they make the claim as you're applying through their briefs that we have said that the Commission was to make.
Hugo L. Black: Well, I'm realistic more in what you say now?
Benjamin C. Sigal: Yes, sir. Yes. Now, we have never said and we do not claim that this finding which is made at the time the construction permit is issued is the only finding that is required if before the -- the reactor can be operated.
Hugo L. Black: Now, you say this finding has not been made, is that it?
Benjamin C. Sigal: That's right, we say this finding.
Hugo L. Black: Is that the basis of your argument?
Benjamin C. Sigal: That's the substantially the basis of the argument.
Hugo L. Black: If you are wrong in that, what happens then?
Benjamin C. Sigal: If we are wrong, then this construction permit was validly issued.
Hugo L. Black: In other words, if they had made a finding to this effect that -- under this first, when you say they are authorized to issue the permit?
Benjamin C. Sigal: Well, they had issued it.
Hugo L. Black: Well, you say it's alright?
Benjamin C. Sigal: Then -- then we have no case. If they had made the findings which the law and their -- and their regulations require, then that --
Hugo L. Black: That is -- is that right here?
Benjamin C. Sigal: This is one of them. This is -- this is the principal one, yes, Section -- Reg. 50.35. Now, we say they have not made this first finding. Not only have they not made it, the -- there's no question they haven't made it in the words of this -- of the section.
Hugo L. Black: You say they have not made it in substance?
Benjamin C. Sigal: We say they have not made it in substance either. That's right. And therefore, this -- this -- permit is invalidly issued and the court then below ordered a remand to the Commission for further examination.
William J. Brennan, Jr.: Well, one -- one last thing Mr. Sigal, is -- is there a difference in the criteria perhaps is the right word, namely is the first finding which you say hasn't been made here.
Benjamin C. Sigal: Yes, sir.
William J. Brennan, Jr.: A finding different in quality or content from the finding you say must follow this for operation purposes. In other words, the language of the first finding which you say hasn't been made is that the Commission has information sufficient to provide reasonable assurance and so forth. Then you say there has to be an evaluation after construction with a finding -- finding that the final design provides reasonable assurance that the health and safety of the public will not be endangered, are they different finding the --
Benjamin C. Sigal: No, not in words.
William J. Brennan, Jr.: They are the identical things?
Benjamin C. Sigal: Not in words, that's right. So far as the regulation requires, the words are the same. Now, if you say that perhaps the content of a conviction is different, then I don't know if we can answer into the minds of the -- of the Commissioners, but so far as the words are concerned, they are the same. Now, let me --
William J. Brennan, Jr.: Well, I may -- I mean to the -- the first one, is the Commission, "Has information sufficient to provide reasonable assurance."
Benjamin C. Sigal: Yes. That's the --
William J. Brennan, Jr.: The second one is that the final design provides reasonable assurance.
Benjamin C. Sigal: Yes.
William J. Brennan, Jr.: Was there a difference between them?
Benjamin C. Sigal: Well, I thought you were referring to the -- to the duty of assurance? Yes, we -- yes, of course, by that time -- by the time that the -- that the reactor is constructed, then they have the whole thing before them and they make the tests to determine if it will be safe. But the question then is, is the reactor that we have before us or doesn't provide adequate assurance that during operation, the health and safety of the public will not be endangered? Now, prior to the time that --
William J. Brennan, Jr.: Well, is that -- is that the way it reads Mr. Sigal? It says in the first one, dealing now only with the construction firm, that if the Commission has information sufficient to provide reasonable assurance. Now, that's not like the second one.
Benjamin C. Sigal: Well, that was --
William J. Brennan, Jr.: That the final design does provide reasonable assurances?
Benjamin C. Sigal: No, obviously because then -- they have -- there has been a -- a completion of the reactors, so they see it before even when they have tested it. Now, in -- in that sense, of course, they are different. While I was directing my response, I thought your question was to the matter of what constitutes --
William J. Brennan, Jr.: I'm getting back to where you and I left off --
Benjamin C. Sigal: Is there a difference in reasonable assurance?
William J. Brennan, Jr.: And getting back to where you and I left off last night, I thought I understood it, so I just heard you answer Mr. Justice Black. I know what you told us last night was that the finding at this stage is identical with the finding that has to be made at the operational safe.
Benjamin C. Sigal: On reasonable assurance, as what I was directing my response to. The -- the -- initially, as -- as we see it and as this language states, the Commission should make -- is required as we see it to make your finding on the basis of information it has at that time that when the reactor will be completed. It will operate in a manner which will be provided adequate protection for the health and safety of the public. Now, when the reactor is completed, it hasn't yet operated. But nevertheless, there is more information before in the -- in the form of a completed reactor. Then they must make another determination that when this reactor is operated, it will provide adequate protection to -- for the health and safety of the public. Even at that point has -- it has not actually operated, but it has been completed and it -- it has undergone some tests, so there is a difference.
Hugo L. Black: Mr. Sigal I think, maybe I understand your petition better now, but I'm not sure so that -- that's the reason I'm saying it. As I look carefully at the findings 34 and 35, I find their issue -- they relate to the issuance of a provisional construction only. They do not mention operation. Is that right?
Benjamin C. Sigal: The 34 (Voice Overlap) --
Hugo L. Black: 34 and 35, upon which the Government relied. Well, the purpose --
Benjamin C. Sigal: No, they're -- they are relying, Your Honor --
Hugo L. Black: Well the purposes of a provisional construction permit have reasonable assurance at the case in (Inaudible) is find -- financially qualified to engage in the construction. They say they're -- an operation of the reactor and its issuance of a provisional construction permit will not be inimical to the common defense or to the health and safety of the public. And the prospective says the Commission is satisfied if it has information just this first one, sufficient to provide reasonable assurance that a facility of the general types purpose can be constructed and operated at the proposed location without undue risk to the health and safety and these findings seemed to be limited to offer the sale that the public health and safety will not be jeopardized merely by the building itself.
Benjamin C. Sigal: Precisely.
Hugo L. Black: And you were saying that it's necessary under the statute.
Benjamin C. Sigal: And under the regulation.
Hugo L. Black: It says -- can be constructed and operated that they should've had the finding say both as to construction and operation.
Benjamin C. Sigal: Yes.
Hugo L. Black: And that they have not done.
Benjamin C. Sigal: That -- that we say they have not done.
John M. Harlan II: Isn't the master finding number 22?
Earl Warren: 22.
Benjamin C. Sigal: Yes.
John M. Harlan II: Not 34?
Benjamin C. Sigal: Master finding is --
John M. Harlan II: 22.
Benjamin C. Sigal: Yes. And we say they have not done it -- even 22 contains that qualification, namely that it's for the purposes of the provisional construction permit.
John M. Harlan II: Well, I'd like to ask you about 22. If the phrase for the purposes of this provisional construction permit were deleted, would you say the finding was adequate?
Benjamin C. Sigal: The finding -- if that were the only change, it would certainly improve this finding. Yes, it would then be in the -- in the in the term --
John M. Harlan II: It wouldn't be adequate.
Benjamin C. Sigal: Well, it would not be adequate in the -- in view of the opinion that we will get to that. But assuming that the opinions were modified so as to eliminate the references to danger during construction, then this would be adequate, yes. But our position is that the explanation particularly of what the Commission was doing as revealed in its opinion, as shown by the basis on which it acted that fundamentally, they were considering danger during construction rather than operation. Now, that is basically our -- our first --
Hugo L. Black: Well, I -- I thought that was it and I -- I come back for the idea that I originally have, if the Government hasn't correctly stated this question when it said that you're objecting to the finding because they relayed only to construction and they have not found that the safety would be adequately protected under the law as to the operation.
Benjamin C. Sigal: Yes, that's correct. But I didn't understand them to say that, but if they said that that would (Voice Overlap) --
Hugo L. Black: I thought that was the question were, maybe I'm wrong.
Benjamin C. Sigal: I know that -- that would -- that is the essence, if the States are positioned here. Now, I want to make clear that we do not -- are not asserting on the safety question that there is a danger on an atomic bomb explosion or explosion like an atomic bomb here. That the -- the danger arises from the issuance of gasses through the flues and the stacks and the possible rupture of the containment. Now, that is where the major danger arises. And for example, a -- an accident occurred, the reactor in England, the Windscale reactor on October 1957, a small reactor than the one here. And it resulted in a passage of radioactive gasses through the chimney. Now, the leading physical -- physicist, nuclear scientist of Great Britain declared that this accident released considerably more radioactivity, then is released during a -- an explosion of an atomic bomb of a Hiroshima type. Now, we're not saying that this caused the damage that that bomb caused because there was no blast or fire. But so far as radioactivity itself is concerned, a -- an accident in the reactor of this type will cause that kind of radio actual -- equivalent to that of a large atomic bomb. Now, that's the nature of the problem we have before us. Now, this was outlined -- this was emphasized by the fact that the insurance industry of the United States would not provide the insurance that was indicated for this type of accident. The entire insurance industry of the United States would provide only $60 million public liability insurance for a reactor accident, with the result that in order to promote the building of reactors, the United States adopted an indemnity provision in the atomic -- in the Act of 1954, by amendment in 1957, providing for an indemnity of $500 million for a single accident. That is what the law now provides, $500 million indemnity that United States will pay over and above the amount of insurances that will be paid by the private companies, for the results of a single accident. Now, I think that that in itself indicates the enormity of the problem and the horrendous consequences of an accident and the enormous responsibility that rests upon the Commission.
Hugo L. Black: May I ask you, nothing has been said about the word proposed location.
Benjamin C. Sigal: Yes, sir.
Hugo L. Black: And I have not it's stated, what is the proposed location with reference to people that around it?
Benjamin C. Sigal: You mean in this case?
Hugo L. Black: In this case.
Benjamin C. Sigal: In this case, they were proposed locations as the -- has the name of Laguna Beach, Michigan. It's a -- on the lake about 30 miles from Detroit, Michigan and also about the same distance from Toledo, Ohio.
Earl Warren: How many miles, you say?
Benjamin C. Sigal: About 30 miles.
Earl Warren: 30 miles.
Benjamin C. Sigal: From Detroit and about the same distance from Toledo. And within a 30-mile radius of this location, the -- there are about two million people living. Now, that is the -- what the record indicates of the -- what may be considered the immediate area which would be involved in the event of an accident. Now, before going into the discussion of the law, if the Court please, I would like to point out, in which -- whether there is -- a respect in which the Commission is extraordinarily unique. There is no other agency so far as I know which combines two conflicting functions namely, promotion and regulation. With the adoption of the Act of 1954, this is what has occurred with the Atomic Energy Commission. On the one hand, it must -- it is given the responsibility of promoting the development of the peaceful uses of atomic energy, particularly reactors. And with the other, it must regulate and determine whether or not these are safe. This is in effect like asking an operator on automobile to drive on one foot on the accelerator and one foot on the brake at the same time. Now that I -- I submit there's an invitation to schizophrenia. Now, this is the problem that the Commission has. Now, consider what was actually done in this case.
Potter Stewart: It's not unique is it as you suggest, is -- hasn't this -- isn't it true for example, if the Civil Aeronautics Board has exactly that same kind of (Voice Overlap) --
Benjamin C. Sigal: No, I think not, Your Honor. In the case of aviation, the safety responsibility is primarily with the Federal Aviation Agency, the CAB is concerned with the -- with promotion.
Potter Stewart: Well, that aspect of regulation is true.
Benjamin C. Sigal: Yes. Well, now we're talking about the safety.
Potter Stewart: That -- that aspect is true.
Benjamin C. Sigal: That's right. And -- and this of course -- that the only area in which the Atomic Energy Commission has regulatory functions namely with respect to safety and security. Now, in this case, the Commission negotiated with PRDC, prior to the time that the permit was even applied for or to help PRDC develop this reactor and then the license -- the -- the construction permit was issued and while the hearing was going on to determine whether or not that construction permit was properly issued, the Commission entered into a contract with PRDC. They spent four -- over $4 million with the purpose of research and development of that reactor.So that they have the -- they have been -- they were assuming then the function of promoting this particular reactor. Now, in addition to that, while this proceedings go on and now, the Commission is in constant consultation with the -- with PRDC to help -- help it out and give whatever advice it can presumably and give it guidance, all for the purpose of course and we don't say this is illegitimate, of promoting the development of the industry. Now, we think that this -- this essential conflict of interest, we submit, is a matter which should be taken in consideration so far as this case is concerned, in determining the weight to be given to the interpretations and the findings. Now, this we think this double -- this double function is -- must have as we see it, a very substantial impact on the way in which the Commission actually handles the determination of the regulatory phases of its responsibility.
John M. Harlan II: If your finding is sufficient, you're not attacking the sufficiency of the evidence to support the finding?
Benjamin C. Sigal: No.
John M. Harlan II: You certainly couldn't be called on to review that.
Benjamin C. Sigal: No, we are not attacking the sufficiency of the evidence.
John M. Harlan II: Well then, I don't quite understand your argument.
Benjamin C. Sigal: Well, for example, the -- some argument is made here to the effect that the usual -- that rules with respect to getting weight to the administrative interpretations of a law should be applied here. We say that that -- that principle is substantially weakened in this particular case, because you have here the -- a conflicting approaches of the Commission in determining whether they should give a -- a certain interpretation which were to promote -- which would help their promotional activities and one which would help their regulatory activities. So we say that -- we point this out because this conflict of function which is so -- so deeply imbedded in the -- the structure and the functions of the Atomic Energy Commission. Now, we're not suggesting that anything they've done is illegal on that account, but we think it must be -- it must be a matter which should be borne in mind. For example, just to conclude this one point, in Mr. Wolman's testimony whose one of the members of ACRS and who testified in this case. This is volume 3 of the -- of the record on page 866. He states in the middle of the page in general, it is apt to be true that the proponents of a particular reactor fill the highest degree of optimism regarding both the machine and its sight, while those most directly concerned with the protection of the health and safety of the public, demonstrate a less degree of optimism. This jacks the petition -- jacks the position of judgments is neither unfamiliar nor unexpected. Historically, it accounts with the fact that site locations for industries of more familiar and normal characteristics usually have external review by public regulatory agencies. This situation has arisen not so much because of any philosophical difference of opinion, but because experience has shown that industry is not always the best judge of the disability which it might create for the public. Now, here, you have in the -- in the Atomic Energy Commission, some of this disability which Dr. Wolman has indicated, industry might have under some more circumstances. Now, this is a very serious problem and --
Felix Frankfurter: Mr. Sigal I don't quite follow why there is built-in disability (Inaudible)
Benjamin C. Sigal: Because we think that this is in effect, sitting on both sides of the table Your Honor. On the one hand as the petitioner said there, the object of the Commission is to get reactors built, to promote them, to see that the civilian use of atomic energy is given as much emphasis as possible. On the other hand, it's also the function of the same agency to say that you cannot go ahead unless all safety precautions have been taken.
Felix Frankfurter: That's a very different thing from what Dr. Wolman was talking about. Of course, businessmen who want to promote business have one interest as against in public safety. I was -- I just wondered what the business thinks of. What you're saying is that the Atomic Energy Commission wants to promote reactors for -- for industrial economic purposes, is that it?
Benjamin C. Sigal: Well yes. It is -- it's one their functions and what the -- and --
Felix Frankfurter: That's a very different thing from the natural optimism of a businessman who (Voice Overlap) --
Benjamin C. Sigal: Well, it may be Your Honor. It's a matter of judgement of course.
Felix Frankfurter: In any event that -- that's severe -- that may well be a valid criticism of what Congress has done in lodging the power in the Commission for the granting of this premise.
Benjamin C. Sigal: Well, that of course a -- a matter of for Congress, that's true. And then the Congress is now in the course of reexamining this situation, but we think it's a matter which ought -- ought to be borne in mind, in determining the weight to be given to the Commission's interpretations.
Felix Frankfurter: Well, did --
Benjamin C. Sigal: Well, if may go on to the matter of what the law provides. Now, the Commission -- well, rather the petitioners here, the Government particularly, has asserted that the standards are to be found -- the standards for the issuance of licenses are to be found in Section 104. Now, that in using the Government's brief, that would be on page 111. Now, they claimed that the standard appears in this Section. Now, the -- the language relied upon is as follows, "In issuing of 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." What is -- what it is saying there is that the terms of the license and regulation shall be of this nature. The -- the Section itself does not say what -- what any finding shall be as we see it. The regulation itself does not set forth the standards. This is in effect saying that the Commission shall establish the standards. Now, there can be little question, we submit that this is in fact how both the Commission and the Government petitioners actually construe their powers under this Act. Now, for example, on page 40 and 41 of the Government's brief, they say the Government -- the Congress gave the Commission -- at the bottom of the page, "The Congress gave the Commission broad power to establish requirements that's so you protect life, health and property, in the development and use of atomic energy for peaceful purposes." The very breadth of the phrases demonstrates that the Commission's delegated authority encompasses the entire spectrum of health and safety regulation, the formulation of policies, the evaluation of scientific information, the fixing of standards and their application just be of the cases. Now, this we submit, is a statement in effect saying, this -- the -- that there is no limit to the discretion of the agency on page 50 of the same brief. It has said this -- this is -- this language appears at about the middle of the end of that paragraph, at the middle of the page. "The absence of specific standards governing the grant of construction permits was evidently designed to give the Commission the broadest discretion in formulating appropriate safety standards at this stage of the proceeding." Now that we submit, means there are no limits on the discretion of the agency. Now, the Commission itself has taken a similar position. For example, on page 642 of the record, that would be volume 2 in its opinion.
Earl Warren: And how does the -- how does the fact that the Commission has broad discretion, weaken the argument to the Solicitor General?
Benjamin C. Sigal: In effect Your Honor, it appears to us that they're saying there are no limits placed by the law on the discretion of the agency. That they, in effect, do not have to make any findings and they say.
Earl Warren: Where do they say they don't -- there's no limit -- they can do anything they want?
Benjamin C. Sigal: Well that's our construction of what they -- what they have said.
Earl Warren: Will you take it something in their briefs or something that (Voice Overlap) --
Benjamin C. Sigal: What I have just read -- what I have just read from their briefs.
Earl Warren: Well, that's his broad discretion, that doesn't say --
Benjamin C. Sigal: Pardon?
Earl Warren: That's his broad discretion.
Benjamin C. Sigal: The broadest discretion. Well, I don't know what the broadest discretion is, Your Honor. They haven't -- that's as far as their language goes. But may I call your attention to beginning at the -- the sentence about the middle of the page, in recognition -- on page 642 of the record.
Earl Warren: 642?
Benjamin C. Sigal: Yes.
Earl Warren: Thank you.
Benjamin C. Sigal: In recognition of this point, our rules are designed to provide for Commission determination of a form and construction and scope of a construction permit preliminary to a Section 104 license as appropriate in a particular case depending on the particular state of research and development currently available to the proposed project. We say that -- the Commission says we -- this language, in effect, means that they have the discretion to do as they see fit to -- to establish any standards they see fit. Or in -- as it applies in this case, they do not have to make a finding at the -- at the time the construction permit is issued or any other time prior to the actual -- the actual operation of that there will be safe operation. As a matter of fact, this language is so broad that there is nothing in this Act, nothing in this language, which can be point to do as saying, they even have to make a finding at the time they authorized operation.
Felix Frankfurter: Mr. Sigal, the -- the Government of course can enlarge the scope or the discretion given by the statute to the Commission, can it?
Benjamin C. Sigal: No.
Felix Frankfurter: No matter what they say in their brief.
Benjamin C. Sigal: No.
Felix Frankfurter: Now, what I want to know from you is, do you attack the delegation given in this statute as either the statute being an invalid unconstitutional delegation by Congress or the regulation which have sought to implement the statute as ultravirus.
Benjamin C. Sigal: No, we don't do either.
Felix Frankfurter: You don't do either.
Benjamin C. Sigal: No, we say that 104 is not the pertinent section. That is our position.
Felix Frankfurter: I -- I thought of that act. I just want to know.
Benjamin C. Sigal: Yes.
Felix Frankfurter: You don't -- this is not an unconstitutional delegation.
Benjamin C. Sigal: No, we're not claiming is unconstitutional.
Felix Frankfurter: Or that the regulations which they formulated under their delegation are not ultravirus.
Benjamin C. Sigal: Not the -- not the regulation as written, but the regulation as applied.
Felix Frankfurter: I'm talking about the regulation.
Benjamin C. Sigal: As written, no. As written, we are not attacking the regulation in the briefs.
Felix Frankfurter: What you're saying is them -- they misconstrue this -- they've -- they exercised power beyond the delegation that Congress gave them --
Benjamin C. Sigal: Yes.
Felix Frankfurter: -- and they didn't apply their own regulation.
Benjamin C. Sigal: That's right.
Hugo L. Black: Is -- is that based on your argument that their finding 22, 34, 35 fall short of the standard requirement, because they have applied a law in the statutory standards to construction permits.
Benjamin C. Sigal: Exactly, yes. They have not applied this type of standard, we say is required. Now, if I may get to the statutory standard, then I will get to the regulation. Now, the statutory standard, where construction permits as we see it, is contained in Section 182 and 185 of the Act. Now -- perhaps I'd better use the -- in -- in our -- in the respondent's brief at page 93, appears Section --
William J. Brennan, Jr.: What -- 92 of what Mr. Sigel?
Benjamin C. Sigal: 185 of the respondents' brief.
William J. Brennan, Jr.: Of your brief? Thank you.
Benjamin C. Sigal: Section 182 states, "Each license application for a license hereunder shall contain certain information." And the second sentence says -- reads as follows, "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 and source special nuclear material required, the place of the use, the specific characteristics of the facility, and such other information as the Commission made, by rule or regulation, deem necessary in order to enable it to find that the utilization or protection -- production of special nuclear material will be in accord with common defense and security and will provide adequate protection to the health and safety of the public." That we say is the statutory standard. Now, the question is, does this supply to construction permits? But this you say, it does not. We say it does apply to construction permits. Now, this Act is --
Hugo L. Black: May I ask you in that connection if it wouldn't disturb you?
Benjamin C. Sigal: Alright.
Hugo L. Black: Supposed they had left out in their finding that -- that which you considered to be a limitation of their finding to a mere construction permits, would you say that that finding then met the standards?
Benjamin C. Sigal: Well, if -- if by --
Hugo L. Black: With reference to operation and their building?
Benjamin C. Sigal: If they revised -- if they revised their finding to making any finding of safety with respect to operation, then it would be alright.
Hugo L. Black: Well, if -- supposed they just left out the part which seems to limit it to --
Benjamin C. Sigal: If they left --
Hugo L. Black: -- by the provisional construction.
Benjamin C. Sigal: If they left out that qualification and with -- along with the qualifications that appear in the opinion, then we say that would be all the -- permit would be alright. But we say that these findings along with the explanations of the findings that appear in the opinion, show very clearly that the Commission did not apply that finding to the operational stage and at the very best are so -- are so confused and so obscure that the -- the opinion and the decision does not clearly state at the very best, what the basis of the Commission's action was.
Hugo L. Black: Is your argument in sort that the statute and the regulation that require findings to be made before they permit a construction of a building, not that the building is safe or that the operation of the building is safe. But they must go further and find that at that time, building itself -- the management of that building and its operation for a production purposes, will not endanger the health of the people.
Benjamin C. Sigal: That's right.
Hugo L. Black: That's your argument?
Benjamin C. Sigal: Yes, sir. That's right. And we say that is what Congress contemplated and that in effect, we say also is what their own regulation contemplates, as written, but not however, as applied in this case. Alright now, it -- the term, license, by virtue of the statute itself and this appears in the last sentence of Section 185, which appears at the top of page 95 of our brief says, "For all other purposes of this Act, the construction permit is deemed to be a license." Now, I get that in the introductory phrase, "But for purposes of a reactor, the term, license, in the -- is -- covers both the -- the end result as well as the construction permit." Now, it is our position that this language does not refer -- does not limit Section 182 to the actual license to operate. All that is referring to is to the application, not to the license. Now, that is how the Commission itself interpreted this matter, now, to -- in the regulations which it adopted. Now, let me point out how -- why it is clear that the Commission did so construe the act and -- and adopts the regulations pursuant thereto. If you'll note on page 96 of our brief, regulation 50.34, now that refers to the technical qualifications that are required in the application. Now, 50.34 sets forth all in -- in much greater detail, but the -- the same -- the same type of detail as Section 182 calls for, all of these technical aspects. Now, the Commission's own regulations provide that this information must be in the application for a construction permit. They say so, and this is found in Section 50.45 of the -- the Commission's regulations and 50.45 is in the record at page 644.
Earl Warren: Well, were those requirements met here, do they do those things?
Benjamin C. Sigal: Oh yes, I will get -- they filled out the application, yes.
Earl Warren: Yes, but -- and they supplied that information.
Benjamin C. Sigal: They supplied information. The question is was it adequate? But they did fill out the forms. And -- but the point I am now getting to is that the Commission interpreted this Section 182 and the requirement for information to apply to construction permits. Now, if you will look at page 644, you'll note in the footnote, page 644. Standards for construction permit, Section 50.45, "An applicant for a license or an amendment of a license who proposes to construct or alter a production or utilization facility, will be initially granted a construction permit, if the application is in conformity with and acceptable under the criteria of Sections 50.31 through 50.38 and the standards of 50.40 through 50.43." Of course, Section 50.34 is obviously included with that -- in that number. So it is apparent that the requirements that since -- which the Section 182 makes and which are incorporated in the regulation, are intended for construction permits. And so, the Commission itself has held, acted on and pursued in the administration of the Act. Now in this case, that was -- what happened was, this happens in every other situation. The application was for a permit to construct and operate. At page 364 of the record, appears the original application for license, that's Volume 2. The very first paragraph states, "We are submitting here with our application for a plus 104 license to build, own and operate a developmental fast-neutron breeder reactor." As a matter of fact, there is nothing in the regulations which provides for a separate application to operate and for a permit to operate. The -- the applications are the same. If the one application that is made at the beginning, for a permit to construct and to operate and that is what is -- the information must be presented at that time. And our position is that Section 182 says that the information must be sufficient to -- to enable the Commission to find that when the issues the -- the license that it will be -- it will be adequate protection for health and safety. And license of course, includes construction permit as these regulations indicate. Now, going over to Section 185 of the Act which relates to construction permits, now -- that's on page 94 of our brief. This says, "All applicants for licenses to construct or modify production or utilization facility, shall if the application is otherwise acceptable on the Commission, they initially granted a construction permit." It is evident that licensees to construct are broader than nearly for a construction permit because it says initially on such applications a construction permit shall be granted. Then it goes on -- sets forth that -- if it is granted then, the -- the construction must -- when construction is completed pursuant to the conditions of the permit, then upon finding that the facility authorized has been constructed and will operate in conformity with the application in accordance for the rules and regulation and absent of finding of good cause to the contrary, the license -- the Commission shall thereupon issue a license to the applicant. Now, as we see it, this makes it obligatory on the Commission to issue a license or to permit the operation once the conditions of the construction permit have been complied with. It shall issue a license. Now, it would certainly not in the contemplation of Congress which was so concerned about health and safety, that it repeated the injunction on -- on this matter about 20 times during the course of the Act. That they would -- they would provide that the license shall be issued if the construction permit -- if the conditions are met, unless the -- the initial finding and safety had already been made. Then it says, "It shall thereupon issue a license to the applicant for all other purposes of this Act, a construction permit is deemed to be a license." Now, that clearly refers to the use of license in the preceding sentence. License there refers to the -- to the culmination of the process. Obviously, a construction permit isn't the culmination of the process. So except for what is stated in the very last -- the end of that sentence, construction license, wherever it appears with relationship to reactors, applies to construction permits as well as to the permission to operate.
John M. Harlan II: Would it -- would it be your view, Mr. Sigal, under your construction that if a proper finding as you view it, has been made at the time of the construction permit and then in the light of -- after acquired scientific information, it developed the basis of the finding, which looked adequate at that time, was not justified scientifically that the permit with (Inaudible) have to issue?
Benjamin C. Sigal: Well, if the -- as far as the conditions of the construction permit would of course require that the -- that the reactor be built and operated. Of course, it would be that finding and safety and with respect to operation. Now, that of course is the function of the Commission. If it cannot find, now this is -- this is of course a very heavy responsibility, but it is our view that the -- that the dangers here are so terrible, that if the Commission cannot find at the time that it issues a construction permit that it would be safe, then we -- safely operated, that it cannot issue the permit.
Hugo L. Black: You mean safe --
Benjamin C. Sigal: Now --
Hugo L. Black: -- you mean safe at that location?
Benjamin C. Sigal: That -- oh yes, at that location. Certainly, I will get to the location -- that question again soon. But it must be at the proposed location, no question. Alright now, if -- certainly, if it appears that the Commission -- to the Commission subsequently, that its initial decision was erroneous, do I -- is that the question, Your Honor? If they find -- if they feel that they were -- improbably made a finding of safety, what can they do? I'm -- I -- is -- was that your question?
Hugo L. Black: Yes. Well, it seems to me that -- that can be no doubt that the -- they do have the authority to make -- to require that it shall be built so as to operate safely. There can't be any question about that because the -- the Act requires that there be a -- a finding of safety of operation.
Earl Warren: Well, if they do that, isn't that exactly what the Government says that they're obliged to do? There's -- take a look at it after it's constructed and -- and get all the additional information, all the additional knowledge and if -- if at that time, it isn't satisfactory, it's got to be made satisfactory or it cannot -- cannot operate.
Benjamin C. Sigal: But this -- if I understood Mr. Justice Harlan, the point was supposed they had made a mistake initially and made appointing of safety and subsequently learned that it will not be. Now, that is quite a different situation from saying -- from giving him the permit to go ahead without having made any -- an adequate finding of safety of operation at the proposed location. Now, I think that's a -- that's a --
John M. Harlan II: I don't see why it just -- approaching from different ends. The point is before the plant can start operating, they have got to make a finding of safety, irrespective of what they've done before.
Benjamin C. Sigal: That's true.
John M. Harlan II: So I don't view what the difference is between you and the Government once you say that they do have the power that I suggested.
Benjamin C. Sigal: The difference -- the difference is very fundamental, Your Honor. Certainly, in this respect and it's highlighted by the legislative history which we go into in considerable extent. During the discussions of the matter on -- particularly on the Senate floor, it was pointed out and there was no challenge to the argument made by Senators Humphrey and Jackson, that if there -- once a construction permit is issued and very substantial amounts of money are spent pursuant to the permit to operate, that the pressures on the Commission to grant a permission to operate might well be irresistible, so that in order to avoid such dangers, it was necessary to make the -- the finding and safety at the beginning. So that by the time the -- the construction is completed in accordance with the conditions of the permit, such a problem wouldn't arise.
John M. Harlan II: But that hazard will be present even under your construction of the Act.
Benjamin C. Sigal: I'm sorry.
John M. Harlan II: That hazard will be present under -- even under your construction.
Benjamin C. Sigal: Well, if the hazard would be very greatly reduced, certainly at the very least, it would be minimized to a very substantial extent.
John M. Harlan II: Well, you can't get rid of that hazard completely under any construction.
Benjamin C. Sigal: No. You can't get rid of it, but you could at least make only -- what the law requires and with adequate (Voice Overlap) --
John M. Harlan II: But that they started with a presumption that these men are going to do their duty and that they're competent, you got to start with that presumption.
Benjamin C. Sigal: Well, we make that presumption with respect to every agency, Your Honor. And in this Court, and other courts have found many times that agencies -- that the agencies staffed by men of honor and integrity and competence, don't just to the law properly, or even their own regulation. Now, the -- the problem of safety is so -- is so enormous that Congress was intent on seeing that the very greatest say -- precautions be taken and one of these precautions and certainly had basic precaution was that you don't allow people to go ahead and build and spend enormous sums of money in this case in excess of $80 million and say, when you finished and spent all this money, then we'll decide --
William J. Brennan, Jr.: Is there any -- anything in the legislative history to show that Congress --
Benjamin C. Sigal: Yes.
William J. Brennan, Jr.: -- turning your mind to that particularly?
Benjamin C. Sigal: Yes. This is in the legislative history and we cited in our brief at pages 40 -- begins at page 39 and going there through the page 42, 43. And the court below, it was accepted that interpretation. The -- this legislative history assuring what was the intent and the -- for the interpretation particularly at Sections 182 and 185 and just question of influence. Now --
Felix Frankfurter: Mr. Sigal, I think in the purport of the -- give to -- to you and Justice Harlan, gets down to this. From myself, I couldn't subscribe to more heartily that the exercise of these powers requires men of the highest possible competent, of the highest possible disinterestedness and the highest possible courage. So that they are safe to an investment of $80 million, we're sorry that you can't operate it, because we now find it wouldn't sufficiently (Inaudible) Can you escape -- can you escape no matter what, the exercise of discretion that courts of the kind of equal might try to categorize?
Benjamin C. Sigal: A very substantial amount of discretion is required, Mr. Justice Frankfurter. There's no question, but certainly the history of this land --
Felix Frankfurter: And you can't -- and you can't -- and you can't protect the hazards of the exercise of that discretion, except by the quality of the men in whom it is vested.
Benjamin C. Sigal: No.There's one other protection, Your Honor. That's the standards which the law imposed. Now we say this -- the standards are imposed.
Felix Frankfurter: The standards -- the standards which the law has imposed, you do not challenge here. What you're challenging is that these -- that the Commission didn't act upon the standards which found them. Isn't that right?
Benjamin C. Sigal: Well, but there is a difference in Your Honor please, as to what the standard is when it is to be applied.
Felix Frankfurter: Not as to the form of the standard.
William O. Douglas: Well, if your standard has been applied here, that no construction permit would've issued to date.
Benjamin C. Sigal: That's right. There would have been no construction permit in this case.
William O. Douglas: Until the research had been finished on the -- on the factor of safety.
Benjamin C. Sigal: That's right. Now, there might have an issue the year later --
William O. Douglas: Yes.
Benjamin C. Sigal: -- two years later, three years later, but it would not have been issued at the time, because the information wasn't available.
Felix Frankfurter: Is it the standards or the -- does that -- or the way in which the standards were once satisfied? What does the lower court do with this case, didn’t say these permits should have been issued.
Benjamin C. Sigal: Yes. It's where is remanded the case to the Commission.
Felix Frankfurter: For what?
Benjamin C. Sigal: Because it didn't make the next --
Felix Frankfurter: For what? Not -- not because of what, but for what?
Benjamin C. Sigal: To make the necessary safety findings.
Felix Frankfurter: Well, they could do that within -- did it say, they must -- they mustn't take less a year in finding that?
Benjamin C. Sigal: Oh, no.
Felix Frankfurter: They could -- found a necessary standard that -- your standard within a week, couldn't they?
Benjamin C. Sigal: Possibly. And they possibly might have found that they didn't exist too, Your Honor and withdraw the permit entirely.
Felix Frankfurter: But they also might have found what you are -- that your standard was satisfied pass a week's further investigation.
Benjamin C. Sigal: That's quite possible, but that still doesn't excuse the Commission.
Felix Frankfurter: I'm not saying that -- I understand that. I'm just trying to put to you what is involved.
Benjamin C. Sigal: Yes. That's involved, but you've never will go back to the Commission. The Commission would have to reexamine the information available and then say whether or not, he has information sufficient to warrant it.
Felix Frankfurter: And then come out with the same findings of -- that safety is -- as guaranteed as humanly scientifically possible as of the date they make the finding.
Benjamin C. Sigal: No, Your Honor. Not the same findings. They shouldn't -- they cannot -- they are not authorized to make a finding for purposes of a traditional construction permit.
Felix Frankfurter: I understand that.
Benjamin C. Sigal: Alright. The absence of that then, if they made the finding that they have information sufficient, had in the present tense, information sufficient to say that the operator -- that the reactor can be operated at the proposed site, then they -- it would be proper, certainly.
Felix Frankfurter: Meaning myself, for purposes of this construction grant nearly puts -- is an additional announcement of the world that this is a contingent grant.
Benjamin C. Sigal: I'm sorry, I didn't understand you.
Felix Frankfurter: I'm saying for the purposes of the construction grant as to me putting and emphasizing words, the fact that it's a contingent grant.
Benjamin C. Sigal: I'm sorry, Your Honor. This is --
Felix Frankfurter: I know you don't agree. I'm just -- I know you don't agree.
Benjamin C. Sigal: I don't agree. Now, may I point out -- may I point out why it is so clear that the Commission did not have that intention what -- at all, at the time that had issued this permit?
John M. Harlan II: Could I ask you one question before you go on? In connection with these pressures that you relied such emphasis on, was there any discussion in Congress as to the relieving of those pressures by having the Government reimburse on recommendation of the Commission?
Benjamin C. Sigal: Reimburse for what?
John M. Harlan II: Reimburse a project that in good faith has been undertaken and then had found to be unsafe.
Benjamin C. Sigal: I'm not aware of any such proposition.
John M. Harlan II: That would've been one surer way of alleviating those pressures, would it not?
Benjamin C. Sigal: That would have been one way, yes.
John M. Harlan II: Well, the -- the best (Voice Overlap)
William O. Douglas: The way suggested I gathered was that by Senator Humphrey --
Benjamin C. Sigal: Yes.
William O. Douglas: -- was not?
Benjamin C. Sigal: That's right. That's --
William O. Douglas: He proposed -- he proposed an amendment that -- that the thing that to be required is a thing that you say should be required.
Benjamin C. Sigal: That's right.
William O. Douglas: Is that right?
Benjamin C. Sigal: That's right. Now, well now, this -- the -- the colloquy at which developed as this record shows is that when -- when Senator Humphrey made that argument, Senator Hickenlooper who was managing the bill said, "Well, that's just what the law provides. And therefore, your amendment isn't necessary." And here's the point why -- as and Senator Hickenlooper said, that a license and a construction permit are equivalent, they are the same thing and one cannot operate until the other is granted. That may have been an infelicitous statement, but that's how the Senator Hickenlooper, the manager of the Bill stated it. And that -- in this was -- was reference to whether or not Section 182 applied to construction permits. That was the purport of the colloquy. And Senator Hickenlooper said, yes. Therefore, the amendment wasn't required. And that of course, imposed the safety standard for the issuance of construction permit and the purpose of that was to assure that the -- that the point that we -- that was -- I just made. Now, with respect to what the actual interpretation by the Commission itself of its own findings and function in this case, I direct your attention to Section Regulation 50.40 which appears on page 98 of our brief. Now, this is called common standards. In determining that a license will be issued to an applicant, the Commission will be guided by the following considerations. And (a) says the processes to be performed, the operating procedures, the facility and equipment, the use of the facility and other technical specifications or the proposals in regard thereto, ending up that -- for the -- so that the health and safety to public will not be endangered. Now, I submit that on place of this language, it is clear that it relates to the operational period. Otherwise, the language makes no sense. The processes to be performed, the operating procedures, the use of the facility and so forth, but that's not what the Commission said it means. Now, at page 643 of the record at volume 2, this is what the Commission says. "Certain portions of our regulations have a bearing on the safety and financial issues in this case. The basic statements of the standards under which the Commission will issue both licenses and construction permits is Section 50.40 of our regulations." Then on the next page, "Under that regulation, where a construction permit for a developmental facility is involved, the Commission must be assured that (a) the construction of the facility will not endanger the health and safety of the public, (b) the applicant for the permit is technically and financially qualified to engage in the proposed construction. And (c) the issuance of the permit for construction will not involve inimical to the common defense and security or the health and safety of the public." Now, when it's clear now, we submit that this language can't be distorted to mean anything, but that the Commission had in mind that all that they were obliged to do at this time in dealing with the construction permit, is to find that the -- it will be safe during the construction period. Well now, nobody contested that. That is -- that's an act of supererogation. Nobody challenge -- or we -- we don't say this establishes a building code in any kind, but it is clear that the Commission was saying that it is -- it is free in fact of the obligation to make a finding at this time that the -- the reactor couldn't be destructed and operated at the proposed location without undue risk to the health and safety of the public.
John M. Harlan II: But the finding in terms covers operation. Finding 22 covers operation and at the proposed location.
Benjamin C. Sigal: For the purposes of a provisional construction permit. Now, the question is this --
John M. Harlan II: You got to read out operation if you put your -- your construction in place.
Benjamin C. Sigal: Well, the -- the Commission was following the words of its section -- of this regulation 50.35 which I will get to in a moment. But, it inserted this -- this qualification which deprives of its essential meaning. Now to show that the Commission really meant seriously this qualification and so greatly limited it, we suggest you compare what it said in its final decision, finding 22 and what it said in its initial decision on the very same point. Now, its finding in the initial decision appears at page 615 of the record, that's volume 2. Now at that time, the Commission said, "The Commission finds reasonable assurance in the record that a utilization facility of the general type proposed in the PRDC application amendments thereto, can be constructed and will be able to be operated at the location proposed right under risk to the health and safety of the public." That qualification was not present, namely, for the purposes of a construction, provisional construction permit. But when they came to the final decision, they inserted that qualification. Now, that can't be an accident. That isn't for literary purposes. In the light of how we interpreted its other regulations, it is -- it's particularly its basic regulation 50.40, this means that it was making a finding for the sake of -- for the purposes primarily of the construction period. Now, there are a number of other findings, which are similarly qualified -- basic finding which are similarly qualified for the purposes of a construction permit. And it cannot be said we submit in the light of the -- of the background here that those are -- those words were surpluses. There was no reason for them at all. The only finding, apparently the principal findings on which the Government relies is number 18, which appears on page 706. Now, that finding fails to say that at the time of the issuance of the construction permit that the Commission has information sufficient to provide a reasonable assurance of safe operation at the proposed location. All that this says is that they expect to have such information at some time in the future. Now, we say that this is not in accord with their own regulation, which says that at the time that there was a construction permit issued, it -- there must be that finding. Now, in -- we've discussed all of these various regulations, if the Court please in our brief, I won't -- there's no time left to go into them. But I want to point out simply in conclusion that the court below examined all of these matters and simply has said, "The most charitable thing it could say was it just didn't know what the court below meant and therefore, it could not pass on the validity of this permit and it therefore remanded it." Now, we say that's the most charitable thing to say about this and that I would -- under the circumstances, this will have to -- this should go back in -- at the very least to find out what was the actual basis of the Commission's decision. And if I may in closing this quote, the language -- the Solicitor's language of Judge Cardozo, Justice -- Mr. Justice Cardozo in which the case was, in fact, under because the -- it was not clear and the Court said, "The difficulty is that it has not said so with the simplicity and clearness through which a haunting impression ripens into a reasonable servitude. In the end, we are left to spell out, to argue, to choose between conflicting inferences." Now, that's the very best that can be said of the decision in this case. We must choose between conflicting inferences of and contradictions right within the language of the Commission -- Commission's decision. Of course, we think that it goes further than that. We think the Commission has actually failed to interpret the law in these regulations properly. But at the very best, it is so confused that it cannot be upheld under the present basis and that the decision of the lower court should be affirmed. Thank you.
Earl Warren: Mr. Moore -- Mr. Claytor, excuse me.
W. Graham Claytor, Jr.: Mr. Chief Justice and may it please the Court. In spite of the many steaming complexities which surround this case, I think the issue before this Court at this time is basically a very simple one. Before I turn to that issue, however, I think I should say a few words about the nature of the applicant for license here, my client, the Power Reactor Development Company, which has been called PRDC by its initials. PRDC is a nonprofit membership corporation organized under the laws of Michigan. Its members consist of some 14 public utilities and seven industrial corporations. It is entirely financed by contributions which it received from its member companies. Its sole purpose is to acquire knowledge and experience in the field of atomic energy and it's doing it by constructing a developmental reactor, the reactor, which is involved in this case. There is no investment in this project in the normal sense because this is not a commercial or -- or industrial project in any sense. The money, which is being spent to build this plant, has already been expanded by the member company that it had been disbursed and treated as a disbursement to this company, to this nonprofit organization. Under its bylaws and under its charter, there can be no distribution of any proceeds to the member companies and on liquidation, none of these moneys can be returned to the member companies. It must be devoted permanently to scientific or research purposes. Now, coming to the issue, it seems --
William O. Douglas: What is the relevance here of that, Mr. Claytor?
W. Graham Claytor, Jr.: I think that this best in this case and in a number of other cases, Mr. Justice Douglas, on the extent to which there is any realistic possibility that pressure could be brought to bear on the Commission, to permit this plant to operate at the time it is completed. This is solely a research undertaken. We have acquired a great deal of valuable information, which has been made available to the public entirely through the Commission in which -- all of which will be so raised later. Should add with any research project, should it turn out to be less successful than we had hoped. We will not -- it will not have been counted as a failure because we have already acquired a tremendous amount of information showing in fact that this particular avenue of approach is not the best one toward nuclear power, would itself constitute an important addition to knowledge. There is no possibility that should this plant not be permitted to be operated, there could be under any -- under the circumstances of the background here, any pressure brought to bear on the Commission to issue a license.
William O. Douglas: I had not understood the argument in those terms. I -- I'd -- because I assume that there's no influence here that isn't wholly proper. I mean --
W. Graham Claytor, Jr.: Well, that --
William O. Douglas: -- whether -- whether it'd be chartable, whether it'd be a private enterprise or whatever it may be. The pressure -- argument I thought was that no bureau would welcome the reputation of having built and created and allowed to be built and created a great, big, fancy multimillion dollar white elephant.
W. Graham Claytor, Jr.: Well, my point I think, is that it would not be a white elephant. Its whole purpose, we're -- we're -- its whole purpose is to acquire information much of which has already been acquired even in the non-nuclear testing. We have solved an enormous number of design, engineering and metallurgical problems in a way which is a value to future reactors of this and other types. The kind of pressure that seemed to be considered by Senator Humphrey and others, not in terms of safety on that was perhaps the pressure which would result from having put a commercial investment. People have invested money in a commercial enterprise. The only utility of building a paper mill is to make paper. And if you've invested money in the paper mills and then you can't run it, obviously, there's -- the responses at least, they're going to be extremely unhappy. I don't believe that where a public safety is involved, there is any realistic chance that a responsible agency would pay any such attention to the pressure. My only point is that with a research undertaking by its nature, the pressure doesn't exist in other cases, where the issue is public safety. I don't think the pressure would be effective.
Tom C. Clark: Where do you say the PRDC functions were located?
W. Graham Claytor, Jr.: They're located over good deal of the Eastern United States, the Detroit Edison Company, the Philadelphia Electric Company, a number of utilities like that the Westinghouse Company Combustion Engineering. This is a -- a consortium of companies who are interested in advancing knowledge in the field of the application of atomic energy to the generation of electric power who have put their money into this project for the purpose of developing this information.
Tom C. Clark: (Inaudible) where this plant would be located?
W. Graham Claytor, Jr.: One, the Detroit Edison Company is -- is the -- the company which is actually building the generating facilities to which the plant will be attached. PRDC does not own and will not operate any generating facilities. We only build the reactor. The Detroit Edison Company is building perfectly conventional generating facilities to which our plant will be attached and to whom we will sell steam. Now, it -- it seems to me that the one issue before this Court is whether or not, the Atomic Energy Commission under the statute, has got authority to issue a construction permit on a provisional basis. On the basis of lesser, a lesser degree of assurance that the reactor can operate, then it admittedly, must find in order to permit that operations. Now, a subsidiary question is what did these findings mean? I think that a fair reading of the opinion and the findings together, make it perfectly clear that the Commission did not find merely that construction of this reactor was safe. They devoted a great deal in fact substantially all of the analysis, of the evidence to the question of whether or not this reactor with a higher degree of probability could be shown to be safe at the time that that showing is required, this before the operating license is to be issued. They plainly did not say all we are finding is that constructional safe. They did say that that is all that one particular provision of their regulation, Section 50.40 required. And I think a fair reading indicates that that's so. That regulation sets up a series of things that must be found before any particular activity may be approved or authorized. And what the Commission said was in applying that regulation, we test it by what is actually being approved or authorized in the particular license. Section 50.35, which is the regulation controlling here, which provides that the Commission must find reasonable assurance that a reactor of the general type proposed can be constructed and operated at the proposed location. Has been interpreted by the Commission in this and in every other case to mean a finding that the reactor -- a finding of reasonable assurance of safety, but an assurance which is not as definitive as the assurance which they must find later. Since this regulation had at its end you will recall, specific condition that said that the issuance of an operating license or rather it says, the construction permit is subject -- expressly subject to the submission of the missing information and to the determination that the final design is safe. This is plainly what it means. And I submit that the only question which is before the Court is one of statutory interpretation, does this regulatory scheme which the Commission has applied to developmental reactor is that valid under the statute. Now, when I say developmental reactors, I think we must realize that while 50.35 of the regulations does not distinguish between commercial reactors, which are licensed under Section 103 and developmental reactors under 104 in words, it plainly intends to draw that distinction because this procedure is only available in cases where because of the nature of the project, there is insufficient, the -- the applicant is unable to submit all the information at the start. The very first words of Section 50.35 of the -- of the Commission's regulations as they are set out in the Government's brief provides 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. Then this procedure which calls for a lesser determination of safety is to be followed. But now in other cases, where the applicant is in a position to submit all of the information at the start, 50.35 is not applicable. There has not yet been any large power reactor which can fall in that category. We have listed in -- an appendix to the various briefs, all of the power reactors thus far licensed for prior to the decision of below, that was a total of nine including this. Every one of those had been licensed on the basis of these findings. I would like as an example to refer to the finding of -- that the Commission made in the Yankee application, which is set out in the Government's brief at page 53 in the appendix to the Government reply brief at page 53. Just to give the Court the feeling that there is nothing unique in this case as respondents, I'm afraid has said through either. Here is what the Commission said in its full opinion, an opinion by the full Commission granting this Yankee permit which occurred in 1957.
Hugo L. Black: What page is that?
W. Graham Claytor, Jr.: Page 53 of the Government's reply brief.
Hugo L. Black: Thank you.
W. Graham Claytor, Jr.: The construction permit must be provisional at this stage of the proceeding, principally because Yankee has not completed the design of the reactor and certain features of the proposed facility present unresolved questions which might affect its safe operation. These features have been identified and discussed in certain testimony. We agree with that testimony and I now quote again, "The experimental program outlined in the application will probably produce the information needed to resolve these questions prior to consideration of the final design and operating procedures and conversion with the construction permits were licensed."
Hugo L. Black: Where is this one to be located?
W. Graham Claytor, Jr.: This one is now in operation, Mr. Justice Black.
Hugo L. Black: Where?
W. Graham Claytor, Jr.: In Massachusetts.
Hugo L. Black: In Massachusetts.
W. Graham Claytor, Jr.: Rowe, Massachusetts, some 40 mile -- 40, 45 miles east of Albany, New York. Now --
Felix Frankfurter: Did I understand you to say that the -- the permit granted thus far have all been developmental reactor?
W. Graham Claytor, Jr.: For all power reactors, that's the large reactor.
Felix Frankfurter: Yes.
W. Graham Claytor, Jr.: Now, there have been 50 to 60 small research reactors which have been licensed in largely for use in colleges and universities. There's one at Massachusetts Institute of Technology of 1000 kilowatts power which is located right in the center of Cambridge, Massachusetts. Those -- some of those have been issued on the basis of provisional construction permits like the one here. That has always been the case where the particular reactor presented novel features that had not been completely proved out before they started. However, a great many of these as the Commission pointed out in its decision, really represent production line models. There are 50 or 60, not that many, 25 or 30 of these public type. They're produced perfectly standardized. Everyone knows about it. On those small research reactors, the Commission has issued non-provisional construction permits, not relying on the procedure in Section 50.35. It had made a finding of reasonable assurance that the reactor as proposed can be constructed and operated at the proposed location. Now, even with those, if to answer your question that came up, even with those, it's perfectly clear that if someone should discover before the operating license is issued, there -- a terrible mistake has been made and there's an inherent danger in one of these reactors. The Commission could still refuse to give the operating license. But of course, in this field, that's true even after you have an operating license. There's no possible doubt that if after a reactor has been running for 15 years, it's discovered that there's an unknown inherent safety defect in it. Its license will be immediately revoked. The Commission has that power. This, where a public safety is -- is concerned, I think it's perfectly clear and the Commission stated in its opinion that this is the overriding consideration. Now, it is not feasible with large developmental reactors even to make the definitive determination that the reactor can be operated at its full power when the reactor has been completed. The Commission has a whole, another series of steps in its procedure of which the provisional construction permit is only the first. That's the only one involved here, but the others were imported because it's an integrated system. When the reactor has been completed, one of these large types I'm talking about, you don't just turn on the switch like you might with a conventional power plant or you would with a -- with a paper list. You operated at a very low power, a lower power than for example this MIP reactor that's in the middle of Cambridge. And you operated that way for quite a while and you take all the data from that operation and you analyze, you see if any changes in these and then you operated at the next step up. You may do this with the relatively conventional reactor in one or two or three steps. You may do it in quite a few. The -- the point is that the Commission has developed that procedure in Section 50.57 of its regulations which in our reply brief. And that this procedure fits hand in glow with its provisional construction permit procedure to provide a series of safety reviews starting from the time you dig dirt until the final time when you operate the reactor at full power. This is the only really reasonable way in which the regulatory system providing fully for public safety can be keyed to the technological facts of life of this industry at this stage of its development.
Felix Frankfurter: Mr. Claytor, of the kind of reactor that you've last delineated or (Inaudible) part of the submission both keep its hold on the oversight of the successive stages.
W. Graham Claytor, Jr.: With the step-by-step starter procedure?
Felix Frankfurter: Yes.
W. Graham Claytor, Jr.: This is done under 50.57 of the regulations. But first, we have to have another hearing, a report of the Advisory Committee on Reactor Safeguards and the determination that we can take the first step. That step will give us a limited license. The Commission calls it a provisional operating license, to let us go up to 500 watts. After we have done that for a month, we have to come back to the Commission and apply for the next step up and the whole procedure is repeated.
Felix Frankfurter: Affirm on each -- each of (Voice Overlap) --
W. Graham Claytor, Jr.: A separate permit.
Felix Frankfurter: Limited, is it?
W. Graham Claytor, Jr.: It's limited both in time, the maximum provided is 18 months and it's limited in power. And after we have done that, we have to go back to the Commission and make a new application for the next power, the next step. We may or may not have to go back to the Advisory Committee on Reactor Safeguards because their initial approval of operation which has not happened in our case yet, will happen when we get to that point. Their initial approval may or may not cover one step or several steps. But the Commission must have a separate proceeding right straight across the board each time and this gives you, I think, the maximum safety protection by not one analysis of safety on the basis of blueprints which no one at this stage of the development really is capable of doing. It --
Felix Frankfurter: May I ask whether the statute authorizes or indicates submission for such a regulatory administrative procedure?
W. Graham Claytor, Jr.: I think it seems to me that the statute gives the Commission a broad authority within the framework of meeting its obligation to protect the public health and safety, to do what is required by the technological situation in which this industry finds itself.
Earl Warren: Mr. Claytor, --
W. Graham Claytor, Jr.: Yes.
Earl Warren: -- could you -- at any stage of this proceeding after it once granted this operational license on a low level, could the Government at any time then say, well, it's -- it's safe up to this point, but we're not sure whether it will be safe beyond that so therefore, you can only operate it at this level.
W. Graham Claytor, Jr.: Absolutely, sir.
Earl Warren: You could say?
W. Graham Claytor, Jr.: Absolutely. They certainly could and the usual problem, if I may just be practical about it, the usual problem is not black and white. You can't go any higher. The usual problem is we -- you're safe to this point, but we have a problem about the next point. Until you solve that problem, you can't go there. And if we can't solve the problem, that's the end of the line. That's as far as we go. But what would normally happen would be and it maybe a delay, it maybe six months, it maybe longer, that we go back, we solve the problem, we obtain a new instrument, if they say you require before you can go to the higher thing. We demonstrate that the instrument works and then we go to the next power.
Earl Warren: Thank you.