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12/05/69 Cities of Statesville, Et v. Atomic Energy Commission

December 5, 1969








of America, Respondents,


Yankee Nuclear Power Corp.,


Nos. 21706, 21844 1969.CDC.298

Reargued en Banc June 26, 1969.


Bazelon, Chief Judge, Wilbur K. Miller, Senior Circuit Judge, Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon and Robb, Circuit Judges. McGowan, Circuit Judge (concurring). Leventhal, Circuit Judge, with whom circuit Judge wright and Robinson join, concurring. Bazelon, Chief Judge (concurring in part and dissenting in part).


TAMM, Circuit Judge:

On August 6, 1945, some four square miles of a city were destroyed by a blast from a bomb with the explosive force of 20,000 tons of TNT. *fn1 On August 9, 1945, 39,000 human beings were killed and 25,000 injured in a similar explosion. Five days later a four - year war in the Pacific was over. In November, 1952, an island in mid-Pacific disappeared and in its place gaped a hole one mile wide and 175 feet deep. The TNT equivalent of such a blast is set at about 6,000,000 tons and the cause of that disturbance has become known as "The Bomb." A chronology of devastation does arise out of the exigencies of war -- hot and cold -- but because the success of peaceful civilization, like that of war, is dependent upon adaptibility to the environment, the inventive genius of destruction has now turned into an effort toward constructive and peaceable use of a most fantastic source of power.

The invention of the atomic bomb and its regrettable detonations have demonstrated that the fission or splitting of one pound of uranium yields an energy equivalent of 3,000,000 pounds of coal. That figure, translated into heat, amounts to about 10,000,000 kilowatt hours. It is therefore quite apparent why industry has sought to domesticate the atom and exploit its power with the intention of sophisticating both manpower and machinery in order to achieve a saleable product.

From the time our earliest ancestors squatted about their fires to this present century, the primary source of man's energy has been fossil fuel. Coal and its chemical family of wood, gas, kerosene, oil and the like have been appropriated by man to warm his cave, cook his food, light his home, power his automobile, and provide for his many general comforts in an ever-changing environment. This reliance, however, has had some visible side effects that are mounting in disturbing proportions. Man's failure to preserve his fuel supply through conservation has caused the available reserve of fossil fuel to diminish to the extent that man's energy needs must be supplemented by an alternative source within the next century. Moreover, this very mobile civilization of ours seems bent upon burning fuels to such an extent that modern pollution has contaminated the air we breathe, the water we drink, and the food we eat. Also, the exhaustive drain on our natural resources has occasioned irreparable damage in the area of their departure. It is therefore imperative that other means be employed to those same good ends of meeting mankind's needs.

The nuclear fission reaction, somewhat analogous to a fire, is maintained, in peaceful applications, by the nuclear or atomic reactor. Here a controlled chain of nuclear explosions occurs on a self-sustaining (and self-destructing) pattern. Traditional fossil fuel generators burn coal whereas nuclear generators "burn " uranium, and, while the layman can make facile comparisons of this nature, nuclear reactor engineers are still struggling to find an efficient process for controlling the reaction. Thus, the basic problem in using atomic power to generate electricity is harnessing nuclear fission to drive more or less conventional turbines.

The first nuclear reactor to generate electricity was built on an experimental basis by the Argonne National Laboratory in 1951. In 1956, the British began to operate the Calder Hall station as a large-scale endeavor. These plants could neither produce electricity on the scale of the traditional coal-burners, nor compete economically at any scale. They were, however, the prototypes of what the power companies in the instant cases hope to develop. As late as 1967 the output of electricity from nuclear generating plants was only about one per cent of the total output of the conventional generators. It is hoped that by 1980 that figure will be about 37.5 per cent, but it is clear that the present experimentation must attain substantial success if that projected figure is to be realized.

It has been found that the cost of plant construction and technological skills, although immense, is surmountable in view of the economic return -- should all go well. However, at the present time, the efficiency of the fuel cycle is still an economic problem to be overcome before all can go well. This fuel cycle depends on the critical mass of the nuclear fuel, that is, the amount of fuel necessary to sustain the chain reaction. As fuel is consumed, more fissionable atoms must be introduced into the system in order to perpetuate the reaction. Also, there are intricate fuel recovery problems. The "waste product" of the reaction contains valuable amounts of fissionable material which must be recovered, reconditioned and replaced. This process is quite technical and quite costly. Extensive experimentation has been directed toward finding cheaper and more practical ways both of producing the desired chain reaction and of reprocessing the waste. This "fuel burnup" problem can be analogized to the more familiar processes of coalburning generators. Suppose that out of one pound of coal used in a conventional generator, only one ounce is effectively "burned," leaving fifteen ounces of waste to be reconditioned before reburning. Efficiency in heat production could be realized only if an effective method of reusing the "waste" product could be attained. Thus it is with the present nuclear reactors -- the problem is how to get the optimum effect from the minimum cause. In addition to the difficulty of finding an efficient means of recovering unused fuel, other major obstacles must be overcome before the full potential of atomic reactors can be realized. We list a few:

1. Initial cost of fuel.

*fn2. Fuel contamination through radiation.

*fn3. Contamination of reactor components through neutron absorption.

*fn4. Thermal pollution.

Hopefully all these problems can be resolved, but there remains the practical problem of maintaining one's head "economically" above water until practical solutions are found. It is therefore necessary that these problems of economy be overcome before widespread commercial use is feasible in the competitive sense. I. THE INSTANT CASES

A. Cities of Statesville, et al. v. Atomic Energy Commission

The petitioners are eleven North Carolina municipalities and Piedmont Cities Power Supply, Inc., a corporation formed to enable petitioners to conform to the North Carolina law which prohibits municipalities from owning an interest in a federally-licensed electric generating facility located outside their service areas. The respondents are the Atomic Energy Commission and the United States of America. The intervenor is the Duke Power Company, a public utility engaged in the production, transmission and sale of electric power in both North and South Carolina.

In the latter part of November, 1966, Duke Power Company, the intervenor herein, applied to the Atomic Energy Commission for a grant of authority to construct, use and operate three nuclear reactors to be located in its electric generating system in Oconee County, South Carolina. This application was filed in compliance with section 104(b) of the Atomic Energy Act of 1954, 42 U.S.C. § 2134(b) (1964), with a view toward construction of "utilization and production facilities involved in the conduct of research and development activities leading to the demonstration of the practical value of such facilities for industrial or commercial purposes." (For full text of applicable statutes see appendix.) These reactors are to be used by Duke in its production, transmission and sale of electric power. This application, along with certain amendments, was reviewed by the regulatory staff of the Atomic Energy Commission. It found that the construction and temporary operating permit would be consistent with the Act as implemented by Commission regulations. Subsequent to this preliminary review, the Commission announced that a public hearing on the Duke application would be held on August 29, 1967, to determine whether a provisional construction permit would be issued. The only issues were whether the construction and operation would be in compliance with 10 C.F.R. 50.35(a) (1968) with respect to health and safety, and in regard to the national security.

Prior to the hearing, the petitioners, with the exception of Piedmont Cities Power Supply, Inc., filed a protest with the Commission, alleging that they were customers of Duke and had been denied an opportunity to participate in the proposed venture. They alleged that the project, in its present form, clearly violated the spirit of the antitrust laws, and requested that Piedmont be given a share of the project so that it could represent the interests of the municipalities.

On August 9, 1967, this protest was dismissed on the ground that the Commission lacked jurisdiction of the subject matter in light of the narrowness of the August 29 hearing. Two days later the petitioners filed a motion to intervene and a motion to dismiss the Duke application on the ground that the Atomic Energy Commission lacked jurisdiction, under section 104(b) of the Atomic Energy Act of 1954, to issue a construction permit. This motion incorporated by reference the former protest based on antitrust principles, and in addition asserted that the Duke application must be considered in light of sections 102 and 103 of the Act as one for a "practical value" type reactor, and thus must comply with those and other provisions.

This motion to dismiss was likewise denied, but the municipalities were permitted to intervene in the proceeding on the issue of whether the application was properly before the Commission under section 104(b). Intervention was denied to Piedmont, however, on the ground that it had no present interest but only sought to acquire an interest. (Piedmont, as before noted, is a manufactured corporation set up in the hope that Duke Power would accord an interest in the plants to Piedmont, which by representation would protect the interests of the municipalities. North Carolina law prohibits these municipalities from having a direct interest in such ventures.) The Commission set September 12, 1967, as the date on which a hearing would be held to determine the health and security questions and also to determine whether the application was properly brought under section 104(b). The municipalities fully participated in this hearing.

On November 3, 1967, the Atomic Safety and Licensing Board issued its initial decision and ordered the Director of Regulations to issue to Duke a provisional permit on the ground that its application met the health and security standards set out by the Commission. It also held that the applicant was properly proceeding under section 104(b) of the Act. Duke immediately began construction.

All of the petitioners appealed the Initial Decision to the Commission: the municipalities on the ground that section 103 was controlling and Piedmont on the ground that it was improperly denied leave to intervene. On January 3, 1968, the Commission denied both appeals on the rationale that "until there has been a 'demonstration of the practical value of such facilities for industrial or commercial purposes', utilization facilities which will provide a basis for commercial evaluation in connection therewith (i. e., 'leading to' such 'demonstration') may be licensed under Section 104b." (J.A. I 144.)2 It affirmed the denial of intervention to Piedmont, concluding that permission to intervene is a discretionary action, and that since the interests of Piedmont were "remote and tenuous" and adequately represented by the municipalities, denial of intervention was not an abuse of discretion. It upheld the grant of intervention to the municipalities as "sound" administrative procedure. On January 12, 1968, the petitioners filed a joint petition for reconsideration. On February 29, 1968, the Commission reaffirmed its earlier position and, while refusing to consider the antitrust problems (on the ground that the petition was untimely in this regard), nevertheless specifically held that it was without jurisdiction to apply such principles to section 104(b) permits. The petition for review in this court was filed in March of 1968.

B. Power Planning Committee of the Municipal Electric Association of Massachusetts v. Atomic Energy Commission

Petitioners are the Power Planning Committee of the Municipal Electric Association of Massachusetts, an organization consisting of the officials of thirty -nine municipal electric utilities, and three municipal electric utilities that are also represented in the Power Planning Committee. The respondents are the Atomic Energy Commission and the United States of America. The intervenor is Vermont Yankee Nuclear Power Corporation, a corporation organized by ten New England utility companies in the hope of constructing and operating the proposed nuclear power facility. The companies, as stockholders, will get their supply of power from the corporation on a contract basis.

On December 2, 1966, Vermont Yankee filed an application with the Atomic Energy Commission for permission to construct, use and operate a proposed nuclear power reactor to be located in Vernon, Vermont. The application was also filed in compliance with section 104 (b) of the Atomic Energy Act of 1954, 42 U.S.C. § 2134(b) (1964), in the hope of attaining a grant of authority for the construction of "utilization and production facilities involved in the conduct of research and development activities leading to the demonstration of the practical value of such facilities for industrial or commercial purposes." As has been noted, this facility will be the source of power for Vermont Yankee in its production, transmission and sale of electricity in the New England area.

The application, with certain amendments, was reviewed by a regulatory staff of the Commission which apparently does a survey of the application in regard to Commission regulations. Upon completion of the review, the staff, with certain exceptions, reported that the application met Commission requirements for a construction permit. It found that the proposed facility was in accord with the Commission's regulatory scheme when viewed in the light of the public health and safety and national defense and security requirements. In an amendment to its application, Vermont Yankee requested that it be given an interim exemption from the financial qualifications requirement of Part 50 of the Commission's regulations.3 The regulatory staff recommended that such an exemption be granted.

Following the staff report, the Commission, on June 27, 1967, issued a notice of a proposed hearing on the Vermont Yankee proposal to be conducted on August 1, 1967, by the Atomic Safety and Licensing Board.4 The notice further indicated that the issues of public health and safety and national security, as well as the contemplated interim financial exemption, would be the subject of the inquiry.

On July 17, 1967, the petitioners filed a joint petition for leave to intervene in the hearing. This petition alleged that each was interested in purchasing a share of the proposed facility and that, should they be excluded from such an interest, each would be prohibited from purchasing the low-cost energy of the proposed venture. The petition further asserted that the action of Vermont Yankee appeared to violate provisions of the antitrust laws. Their position essentially was that they wished an opportunity to be heard on the question of their participation in this venture. They bolstered their position by arguing that their exclusion would be contrary to the concepts embodied in the antitrust laws.

On July 24, 1967, a supplemental petition for leave to intervene was filed by the petitioners on the ground that the application of antitrust principles must be directed toward the Vermont Yankee request for interim exemption from the financial qualification requirements of Part 50 of the Commission's regulations. On July 31, 1967, the Atomic Safety and Licensing Board entered a prehearing order denying intervention to the petitioners on the grounds (a) that the petitioners had no "interest comprehended within the meaning and intent of the applicable statutory and regulatory provisions"; (b) that they failed to allege any immediate or substantive interest which "may be affected by the present proceeding"; and (c) that, in any event, the contentions alleged in the petition to intervene were irrelevant to the issues pending before the hearing board (J.A. II 29-30). The petitioners appealed the prehearing decision on the ground that the license sought by the applicant was of a commercial nature rather than one for research and development, thus focusing on the issue of section 103 versus section 104(b) jurisdiction. This appeal was denied by the Commission as interlocutory but the denial was without prejudice to filing an appropriate exception after the Board's initial decision.

On December 8, 1967, the licensing board issued its Initial Decision affirming its preliminary decision of denial to the petitioners for leave to intervene; the Initial Decision also authorized the issuance of a provisional construction permit to Vermont Yankee. This permit was to be in compliance with section 104(b) of the Atomic Energy Act of 1954. The Board also authorized interim exemption from the financial qualifications requirements. On December 11, 1967, the Commission's Division of Reactor Licensing issued the provisional construction permit which took immediate effect. Like Duke Power Company, the applicant commenced construction.

The petitioners filed their exceptions to the Initial Decision on the grounds that the Board erred in (1) failing to make an adequate investigation of the alleged antitrust violations; (2) denying the petition for leave to intervene; (3) permitting the application to proceed under section 104(b) of the Act; and (4) permitting the interim exemption from financial qualifications.

On April 8, 1968, the Commission denied all of the petitioners' exceptions and affirmed the Initial Decision of the Board. In its memorandum and order the Commission held that, as to the petition for leave to intervene, the petitioners had not shown how their interests "will be affected by our determination on the radiological safety and national security issues in the proceeding" (J.A. II 95). The Commission refused to consider the anti-trust allegations as providing the necessary "interest" for intervention under section 189(a) of the Atomic Energy Act as implemented in 10 C.F.R. § 2.714 (1967). The Commission ruled that it had no authority to consider antitrust violations when considering a grant of authority under section 104(b) as indicated by the "distinction which the Act draws between proceedings under Section 103 and Section 104b. as respects consideration of antitrust matters, and from a reading of the legislative history. . . . That history shows a deliberate limitation in the 1954 Act of the broader antitrust authority in licensing matters which had been contained in Section 7(c) of the Atomic Energy Act of 1946." (J.A. II 96-97.) The Commission held, as to the allegations that the application should have been processed under section 103 rather than section 104(b), that the finding of practical value had not yet been made and that the rationale of its Duke decision would apply to the instant case. In dealing with the interim exemption from financial qualifications, the Commission held that the Board acted on a proper basis in permitting exemption and that since the financial qualifications of the applicant were yet to be determined, the interim exemption provided adequate safeguards while awaiting the outcome of those determinations. *fn5

Following the aforementioned action of the Commission, the petitioners filed a petition to review in this court. II. THE MERITS OF THE PETITIONERS' CONTENTIONS

The issues presented by these petitions are the following:

A. Whether, in both the Duke Power and Vermont Yankee cases, the Commission properly awarded the grant of authority under section 104(b).

B. Whether, in both cases, the concepts of antitrust law are applicable to grants of authority under either section 103 or section 104(b) of the Atomic Energy Act of 1954.

C. Whether, in the Duke Power case, the Commission properly denied intervention to Piedmont Cities Power Supply, Inc.

D. Whether in the Vermont Yankee case, the Commission properly denied intervention to those petitioners.

A. The Propriety of the Section 104 (b) Grant

In evaluating the action of the Commission with respect to the question of whether section 103 or section 104(b) of the Act is controlling in these cases, our review must be limited to a finding of whether the Commission, in proceeding under section 104(b), acted reasonably and whether the facts before the Commission support its finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951). In Duke Power, the Commission held that "the 'research and development' about which Section 104b. speaks encompasses as 'development' a demonstration that will provide a basis for commercial evaluation. Such 'commercial evaluation' . . . means an evaluation of the economic competitiveness of the nuclear facility with conventional power plants." (J.A. I 143-44.) The Commission went on to require that "until there has been a 'demonstration of the practical value of such facilities for industrial or commercial purposes'" (J.A. I 144), these facilities will be licensed under section 104(b). What this means is that no commercial license will issue until there is a showing that these reactor types are "practical" under section 102. The question, then, is what constitutes a "practical value" showing under section 102.

The Commission, in January of 1966, held that a finding of "practical value, while presupposing a determination of technical feasibility, also involves economic considerations, the essential economic test being the competitiveness of the [proposed] nuclear power plant with conventional power plants." Determination Regarding Statutory Finding of Practical Value, 31 Fed.Reg. 221 (1966) (emphasis added). The Commission, quoting from that proceeding, noted that "'pending the completion of scaled-up plants, and the information to be obtained from their operation', there 'has not yet been sufficient demonstration of the cost of construction and operation of light water, nuclear electric plants to warrant making a statutory finding that any types of such facilities have been sufficiently developed to be of practical value'" (J.A. I 144-45). In the final order of the Commission in the Duke Power case, it was demonstrated that the proposed plants of Duke Power are "scaled-up" plants -- that is, that they exceed, substantially, the modified 200 (electric) megawatt plants that are currently operable but which have not yet been shown to be economically competitive with conventional plants. See J.A. I 144-47. The Commission admits that, based on data currently available, it is not capable of finding these large-scale plants to be practical within the meaning of section 102. The Commission apparently hopes that the facilities which are the subject of this action will provide the necessary data for making such a determination. The Commission has said that it will "await a reliable estimate of the economics based upon a demonstration of the technology and plant performances" before it will make the "practical value" finding. This position not only conforms to the wording of the Act, but also adheres to the expressed intent of the drafters of the 1954 law. Congressman Cole of New York, the 1954 Chairman of the Joint Committee on Atomic Energy, spoke to his colleagues on the floor of the House and specifically outlined what the Commission's duty would encompass under section 104(b) of the Act. At 100 Cong.Rec. 11,658 (1954) he made it clear that

After a reactor has been tested out under section 104(b) and its practicability as an atomic reactor has been established, and after it has been demonstrated that this force can be used economically competitively, the Commission then makes a determination that such a reactor as a type does have commercial utility. It may then license persons to use that reactor under the authority given to it as set forth in section 103. (Emphasis added.)

We are called upon by petitioners' argument to make an independent finding of "practical value" so as to require the Commission to hold a section 103 hearing. To do so would be a usurpation of the Commission's function -- a function which Congress has confidently delegated to its regulatory arm.

This is neither a field which is pregnant with legal precedent nor a field in which we can draw upon personal awareness of our surroundings or general knowledge gleaned from readings of the financial section of the daily newspaper. The field of nuclear engineering is one which the experts must dominate for the present time. All that can be required from them is that they make a bona fide attempt at clarity while acting within reason. The Commission, of course, is the technical arm of Congress in this field. It brings its expertise to bear on these problems and its interpretations of the statutes must be given effect, barring clear abuse or patent error. The petitioners in the Duke Power case admit that the determinations of "practical value" depend upon logic and customary usage. The Commission, in its order and rulemaking regarding "practical value," has been both logical and sufficiently lucid that one not versed in the language of the atom can point out that the Commission does not stand alone in its doubt as to the "practical" value of these proposed facilities. Several giants in the field of electric utilities are apparently not yet prepared to pour large amounts of their financial resources into nuclear power at this time. Consolidated Edison, Niagara Mohawk and Central Hudson Gas have indicated doubt as to the "practical value" of these plants by their investment of 170 million dollars in a conventional fuel oil generator to be built on the Hudson River. *fn6 We admit that this somewhat crude "economic weathervane" cannot guarantee all aspects of the weather, but it may be valuable in determining which way the wind is blowing.

Extending this analogy somewhat, we note in the June 6, 1969, edition of "The Wall Street Journal" that the wind is not only blowing but is also variable. There, in an article entitled "Reassessing Nuclear Power: Rising Costs, Delays Cause Electric Firms To Turn to More Conventionally Fired Units," a staff reporter concludes:

Atomic power, which came into its own with a vengeance three years ago, is losing important ground to conventional means of generating electricity.

Electric utility companies, beset by sharply rising nuclear steam generating plant costs, long delays in getting the facilities built and operating, and criticism by local antagonists over alleged water pollution or safety hazards, are turning to more steam plants fired with coal, oil or natural gas. A number of utilities in recent months have substituted such conventional units for previously planned nuclear plants, and others indicate they may follow suit in the months to come.

Id. at 38 col. 1. The reporter goes on to describe the overall picture regarding the present disposition of electric utilities toward nuclear power facilities. He notes that "many utilities are waiting to see how nuclear plants set to start operating this year perform before forging ahead on new nuclear programs." Id. (It is almost as though the wind is watching to see which way the wind is blowing.) Significantly, the article relates that "many utilities say the cost studies of two or three years ago showing a definite nuclear advantage can no longer be relied on." Id. at col. 4. In support of this assertion, the article indicates that "Pennsylvania Power & Light Co., Allentown, Pa., has received an extension from General Electric Co. on an option to buy two nuclear plants for 1975 and 1977 operation, and will use the extra time to take 'a long, hard look' at current cost comparison figures for nuclear and conventional power plants. . . ." Id. If the electric utilities feel compelled to take a "long, hard look" at the practical economics of large-scale plants from the viewpoint of their private pocketbooks, we think it not unreasonable to permit the Commission an opportunity to appraise the practical value of these facilities from the standpoint of the public interest. In the final analysis this court must rely on the Commission's expertise for a determination of practical value. It is the Commission's duty to so determine -- it is our duty merely to review.

The Commission, in proceeding under section 104(b), is not acting on a whim but by will -- the will of Congress as evidenced by the statute. In fact, the Commission has on occasion brought to the attention of Congress this very problem of distinguishing between section 103 and section 104(b) licensing. It has urged Congress that the traditional reasoning behind the distinction has ceased to be realistic. The fuel supplies, so jealously guarded in the past, have been found to be relatively abundant. Congress, however, has not sought to change the standards and thus the Commission must follow the will of Congress. It is axiomatic that if the change is to come, it must come from Congress and not from the Courthouse.

These points, perforce, apply to both cases under review. We hold the action of the Commission in proceeding under section 104(b) to be within its expertise, substantially supported in the record, reasonable and valid.

B. Applicability of Antitrust Laws to Section 103 and Section 104(b) Grants

We need not consider whether antitrust principles apply to section 103 licensing, because we have found that the Commission was correct in proceeding under section 104(b). Turning then to the question of whether the Commission must apply these principles to section 104(b) licensing, we note that the petitioners in both Duke Power and Vermont Yankee base their contentions (that these considerations must be taken into account by the Commission) on a broad public policy argument that can be seen running through many of the administrative law decisions of this court and other courts. *fn7 They say, correctly, that the Atomic Energy Act contains specific caveats urging the Commission to act in the public interest by promoting "free competition in private enterprise." 42 U.S.C. § 2011(b) (1964). The petitioners also assert that section 105(a) of the Act, 42 U.S.C. § 2135(a) (1964), makes it clear that antitrust laws are applicable to everything contained in that chapter. Also, under section 105(a) the Commission is empowered to suspend or revoke licenses in cases where courts of competent jurisdiction have found antitrust violations. What petitioners fail to see is that, in reading the legislative history of this Act, one can find many examples of the drafters' intent to narrowly limit antitrust considerations to specific portions of the statute while expanding the health and national security considerations of the Act as a whole. In 1965 the Joint Congressional Committee on Atomic Energy favorably reported an amendment to section 271 of the Act of 1954. In so doing they recognized that the 1954 Act established that the "AEC's ...

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