POWER REACTOR CO. v. ELECTRICIANS

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Argument of Cox

Chief Justice Earl Warren: Number 315, Power Reactor Development Company, Petitioner, versus International Union of Electrical, Radio and Machine Workers, et al., and Number 454, United States, et al., Petitioners, versus International Union etcetera.

Mr. Solicitor General.

Mr. Cox: Mr. Chief Justice, may it please the Court.

This case is here on certiorari to review an order of the Circuit Court of Appeals for the District of Columbia setting aside an order of the Atomic Energy Commission.

The order of the Atomic Energy Commission continued, in effect, a provisional construction permit authorizing the other petitioner, Power Reactor Development Corporation to construct an atomic power plant outside Detroit, Michigan.

The provisional construction permit authorized the continuance of construction.

It did not authorize the operation of the reactor which could not be done until there had been a further proceeding followed by the issuance of a license to operate.

The court below set aside the order of the Commission on the ground that its findings concerning safety did not satisfy the requirements of the Atomic Energy Act.

I would like to ask the Court's indulgence to postpone any further discussion of the issues or decision below, although I recognize it's unusual, until I have given a rather lengthy exposition of the fact because I'm convinced that the issues in the case become quite clear and understandable once the factual situation has been thoroughly described.

And I do assure you that I will come back to them later.

All atomic reactors rest upon the fact that there are some atoms, chiefly in Uranium, which can be split into smaller particles.

The nucleus of an atom is made up of protons and neutrons, smaller particles.

In Uranium, the protons and neutrons usually total 238, but there's a very small proportion in which the protons and neutrons add up to only 235.

And U-235, as it is called, has the capacity to split apart when it is struck by another free neutron, so that if you had one atom of U-235, getting struck by one free neutron, you would then have three results that are significant here.

First, you would have the release of energy, chiefly energy in the form of flying fragments, the kinetic energy, which, when they bumped into each other and bumped into other substances around, would be transformed into heat.

And the function of this reactor is to capture that energy in the form of heat, turn it into steam and then use the steam to generate electricity which is fed into or will be fed, in time, into a normal utility grid.

The second consequence of the fission is radioactive waste, the particles that are left.

And they are, for a time highly, dangerous to man or other forms of life and one of the problems, in building an atomic reactor, is to make sure that none of that radioactive waste, either at normal operation or as a consequence of any abnormal accident, will escape.

The third consequence of a fission is the release of free neutrons.

Now, if you had 100 fissions, to take a small number, actually, we're dealing with billions, if you had 100 fissions and then they release just enough free neutrons to cause another 100 fissions as they struck atoms of U-235, obviously, you'd have a self-sustaining chain reaction.

If you had only 95 out of 100 in each generation, cause another fission, then the reaction would not be self-sustaining, it would run down.

On the other hand, if you had 105, which would be terribly fast increase, you would have the number of fissions, multiply itself many times over in a very small period of time.

The problem of the early atomic scientist was to achieve the self-sustaining chain reaction.

The problem of the man building an atomic power reactor is to control the free neutrons in such a way that he can raise the level up to the level at which he wants it to operate and then hold it there, operating it just each generation of neutrons reproducing itself or to take it down later if he wishes to take it down.

This is done chiefly by controlling the freight of the free neutrons.

The various ways of doing that, one, is obviously to increase the number of U-235 atoms in your fuel because if you have more U-235 atoms, the chance that a free neutron will strike one in such a way to cause fission increases.

Equally, if you increase the amount of fuel, the chance that a free neutron will strike a U-235 atom before it escapes from the fuel and becomes irrelevant is obviously going to increase.

And just the amounts of fuel which will sustai -- create a self-sustaining chain reaction, you will find often in this record, called the critical size or critical mass.

Another way of controlling the fate of the free neutrons, which becomes important here, is to put into the fuel something that will capture them without causing a fission.

For example, if you put boron, another element, into the fuel, it will capture the free neutrons, so they can't strike other atoms and reduce or bring an end to the chain reaction.

And all reactors have boron control rods, so that you can -- by inserting it, the reaction will be cut down, by withdrawing it, you can permit it to increase.

And they also have, as I will show a little later with this model, boron safety rods, which can be suddenly inserted in the event of any mishap in order to shut the whole thing down.

At the present time, there are operating in the United States some 115 reactors.

The variant size from small experimental reactors to large-scale power reactors such as we have involved in this case.

There are 90 more that are being built.

Two of the large-scale power reactors are located near big cities, one outside Chicago, one outside Detroit and there are others near smaller cities like Albany, New York.

Most of the large-scale power reactors are what are known as thermal reactors because they depend for the reaction on slow neutrons, which I'll describe in a minute, rather than the fast neutrons on which the PRDC reactor were built, it will depend.

One of the characteristics of an atom of U-235 is that for some reason, it splits more easily when it's hit by a neutron going slowly than when it's hit by a neutron going fast.

So what scientist does is to put into the reactor in and around the fuel something called a moderator that will slow the neutron down without capturing it and thereby increase the number of fissions that takes place for a given number of free neutrons.

And those are called thermal reactors.

The PRDC reactor will not slow the neutrons down.

It's therefore less efficient in achieving fissions than a thermal reactor.

But the fast neutrons have a characteristic that slow neutrons don't have.

The fast neutrons, when they hit U-238, the non-fissionable Uranium, a certain proportion of them turn the non-fissionable Uranium into Plutonium.

And Plutonium is itself a fissionable material.

The result is that a fast reactor like this one will create more fissionable material than it burns.

One of the witnesses in the record said this is like starting off an automobile trip with your gasoline tank half full, driving 500 miles, buying no gas and arriving at home with a full gasoline tank.

The trick, of course, is that you are using up the non-fissionable U-238.

You aren't really getting something for nothing.

But U-238 is quite plentiful whereas U-235 is very rare.

And therefore, as the Commission found in this case, the successful use of a fast breeder reactor would be a great step forward in increasing the amount of atomic fuel and therefore, increasing the amount of potential energy in the world.

Of course, the great importance of such reactors as this is that they do hold out a great hope of enabling many areas in the world that don't have sources of energy now to obtain a cheap source of the electric energy which is necessary not only to economic well-being, but some people think to a stable political society because such communities don't have hydroelectric power and the expense of shipping in oil or coal would be very, very great indeed.

And of course, atomic energy is, for ourselves, a reserve against the possible loss of oil or coal, both of which are being consumed that is very, very fast.

The record of atomic reactors, the safety record in this country, seems to me to be very high, indeed.

There has been no regularly operating reactor.

I used "regularly operating" to exclude those being used to perform scientific experiments.

There's been no accident with the regularly operating reactor which has resulted in any injury to anyone leaving aside -- in the regularly operating ones.

Even counting the reactors in which scientific experiments are being performed outside of laboratories which don't have the usual facilities of a reactor, there had, until January 1960, been no accident involving either a fatality to anyone or an injury to a member of the public.

Unfortunately, there was one reactor accident in Idaho in 1960 in an experimental reactor which did result in the deaths of three employees.

Even there, however, there was no injury to any member of the public.

No radioactive waste in significant quantities was found outside the reactor building and the building had none of the safeguards which would be associated with any developmental power reactor of this kind, none of the containment to keep radioactive waste in.

The proposed PRDC reactor will be located at Laguna Beach which is about 35 miles from the center of Detroit.

The whole plant, of course, comprises normal generating facilities, boilers and other things of that kind.

But I have here an -- a model of the reactor.

This is a scale of about 7-to-1.

The reactor itself will be 60 -- 65 inches -- 65 inches high and this is about a foot high.

And it will be 80 inches in diameter.

In fact, it's rarely only a matrix --

Chief Justice Earl Warren: Could you put that back a little farther so -- someplace so we --

Mr. Cox: Can everybody see it there?

That's -- oh, that's very convenient for me.[Laughs]

Chief Justice Earl Warren: That's better.

Mr. Cox: The reactor is really a matrix.

It holds in place a large number of separate subassemblies, these are all removable.

And this -- the whole thing, the whole cylinder is made up of things like this, separate subassemblies.

The core section where the atomic reaction takes place is marked in blue.

And the rest of it is what's known as the "blanket".

Justice Felix Frankfurter: The what?

Mr. Cox: The blanket.

Justice Felix Frankfurter: Blanket.

Mr. Cox: All around here.

This, of course, is cut away.

Now, I have also here a -- this is real life.[Laughs]

This isn't a model.

This is a section of one of the subassemblies, this correspond as it were to this, to the blue part of this.

This is, in fact, one of the subassemblies from the PRDC reactor.

They hang down, you see, the same as this does only they're locked in.

The subassembly, the outside, is simply a cover of stainless steel.

Inside it is this birdcage or honeycomb construction.

It holds these pins which are removable.

You can see them along the front here.

These are made up of Uranium.

These are steel so that we can handle them, but in the reactor, they will be made up of Uranium which has 27%, the fissionable U-235.

And the whole thing is filled with the solid pins.

Then this honeycomb or birdcage construction holds the pins rigidly in place, for a reason that I will explain a little later.

And all that is in, when it's in place, you wouldn't be able to see the inside.

It's in this stainless steel.

The -- when the reaction is taken -- no, one thing more I should explain going back to this.

What I had there corresponded to the blue of a single one of these.

The non-blue, the silver part, is physically very similar to this.

But instead of having the U-235 in it, the pins that are not in the blue, the upper and lower parts here and the outside pin are made up of Uranium that's nearly all U-238, and it's out in this blanket of U-238 that the breeding or creation of Plutonium occurs.

Now, you see the fast neutron will -- some of them will go out of the core without causing a fission and then they will be captured by the U-238 in the outer section, forming Plutonium, which is later a byproduct and used potentially in other reactors.

Over the reactor, I'm sorry, there's no physical way of I -- to show it, hang two control rods that I mentioned earlier made of boron and eight safety rods.

The control rods, of course, are operated mechanically, so that they go into or out of the reactor in order to slow down or speed up the reaction.

The boron safety rods are suspended from electromagnets.

And then, if anything approaching a mishap occurs, the power is shut off and they drop into the reactor and shut the reaction down so that the mishaps do not go any further.

Justice Hugo L. Black: What is the general size of that whole thing made?

Mr. Cox: The whole -- the whole thing is 65 inches high and 80 inches in diameter.

When the reactor is operating, it generates, in through here, large quantities of heat.

To carry the heat away, they're boiled up through.

You see, it could go all through these birdcages even when pins are in, boils through sodium.

The sodium carries the heat away, at one purpose it serves, the other is that through a series of heat exchanges, the sodium is used to heat water and the water is turned into steam and is used to turn the generators that make the electric power.

Justice William J. Brennan: Well, Mr. Solicitor, is the reactor located in a building of any special character?

Mr. Cox: Yes, the building --

Justice William J. Brennan: Don't -- don't tell us (Voice Overlap) --

Mr. Cox: Well, I was going to do it.

I might just well do it now.

The reactor is located in a series of containment vessels which, as a result of test, can be said to be such that they would contain an explosion equivalent to 1000 pounds of TNT.

First, this outer part here is two inches of steel, two inches apart in separate lengths.

Then outside of that is three feet of graphite with another steel tank all around it.

Then there's another half inch of steel and two and a half feet of concrete.

And all these, everything here is underground.

The floor over this is five feet of steel and concrete.

And then the whole thing is in a sort of a football-shaped building with, I think, its two-inch steel shelf, which is gas tight and which extends down again below the ground as well as going over the whole thing.

This is built so that if by any chance there were an explosion in the reactor, equivalent to 1000 pounds of TNT, still, none of the radioactive elements can get out.

Now, let me say now, I'm coming to the matter of explosion later, that the very maximum explosion, anybody has been able to figure out that happened, even if you made the serious or worst assumption, is in the order of being equivalent to 600 or 700 pounds of TNT.

So that the containment is -- allows a very large margin over the worst explosion that anybody could imagine taking place in a building.

The --

Justice Potter Stewart: I don't understand.

I've --

Mr. Cox: Yes.

Justice Potter Stewart: -- I'm -- there are many things I don't really understand, but I'm (Voice Overlap) --

Mr. Cox: Well, I'm --

Justice Potter Stewart: (Voice Overlap) fair concept I think about almost everything that you explained so hopefully, except what happens to the Plutonium that's formed.

Does this --

Mr. Cox: Well, each of these pins, I'm not going to explain the mechanism --

Justice Potter Stewart: No.

Mr. Cox: -- I couldn't to be honest, each of these pins, if we'll leave this with the clerk, you examine it, is built so that fingers can come around and take it at the very end just as I do and pull it out.

And this is built so that all the fuel elements, this is one of the safety features of the fast reactor, each of the fuel elements will be removed at least as often as once every 12 weeks.

This keeps down the amount of radioactive waste you have in here.

They are then removed and shipped in various special containers to the Atomic Energy Commission which stores, or if it has occasion to use it, uses the Plutonium.

You see, while I have only the front row removable, everything in here is removable in the same manner.

And this can all be done at long distance.

Their fingers would come down and take it off.

They put in water for a time and then carried away.

Justice Potter Stewart: And the Plutonium is in the -- it's in the non-blue part.

Mr. Cox: It's in the non-blue part in the axial and radial blanket as they call it.

Justice Potter Stewart: And -- and the blue part, I suppose, would have to be -- those are removed or -- and the -- and the process in which you mentioned of, that's deactivated entirely (Voice Overlap) --

Mr. Cox: Well, that's taken back and reprocessed by the Atomic Energy Commission.

None of the processing of these things is done in Detroit or indeed will be done by PRDC.

It's all -- that's all Government does.

None of that is private.

Justice William J. Brennan: You said they're coming back to the explosion --

Mr. Cox: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Cox: Yes.

I wanted now to come to the proceedings before the Atomic Energy Commission.

And then in illustrating one of the questions before, I think the key question before the Commission.

I'm going to come to the maximum possible explosion.

The original application before the Atomic Energy Commission was filed on January 6, 1956.

The Commission referred the application to the Advisory Committee on Reactor Safeguards which had no statutory standing at the time, but which now has statutory standing under the Act.

The Commission made a report on the proposed reactor which was non-committal and certainly some people would say it was discouraging, although I think non-committal is the more accurate word.

The Commission then had the staff make certain further studies about the safety of the reactor and in August 1956, the Commission issued a provisional construction permit.

The issuance of that permit, let me say very candidly, gave rise to a great deal of criticism, both because it was issued in the face of a non-committal, if not discouraging ACRS report because that report had not been published, it was treated as an executive document, and because no hearings had been held.

The point that I want to emphasize is that the validity of the original construction permit, the August 1956 permit, is not before the Court.

That's not the order that was before the Court of Appeals and not the order which is here.

After that permit was issued, the ACRS report was released.

The labor unions, who are respondents in this Court, intervened.

There were very long and detailed hearings at which most of the members, the ACRS testified.

The Commission made findings, heard briefs and had oral argument and then issued the order which is before this Court for review, which was an order, making certain findings and continuing the construction permit in effect.

So in our view, the earlier criticism is not pertinent at all to the later phase of the proceeding.

Indeed, if you read the criticisms cited in respondent's brief with any care, you will find that most of them plainly and all of them, I think, by fair inference, applied to this original provisional construction permit and not to the findings which were before the Court of Appeals and are here for review.

Now, when the original PRDC application was filed, it was not complete in the sense that it contained all the details of the final design of this reactor as it would operate.

There's nothing unusual about that, let me emphasize, not only in the case of atomic energy but in the case of all kinds of research and development today.

Frequently, science -- scientist can project a solution for certain problems long before the engineers are actually able to build something to test the basis and to try it out in person.

And it also is a fact, which I think any engineer or scientist would agree to today, that frequently in the course of construction, you are able to solve problems that couldn't be solved until the construction had begun.

And certainly, you are able to make test that could not be made until the construction had begun.

This is especially familiar in the Atomic Energy Industry and the Commission has a regulation which bares directly on this point and which we think is the key regulation in this case.

It's Reg.50.35, which you will find on page 135 of the Government's main brief.

It says, in effect, I won't read it all because it's quite long, that where the applicant is unable to furnish full technical explanation, nevertheless, the Commission may issue a provisional construction permit.

If the Commission finds, and I now quote, "That it -- right from the middle of 50.35, "That it has information sufficient to provide reasonable assurance that a facility of the general type proposed can be constructed and operated at the proposed location without undue risk to the health and safety of the public."

But then the latter part of 50.35 goes on and says "That this permit and the issuance of an eventual license to operate is conditional upon the very end, an evaluation by the Commission that the final design provides reasonable assurance that the health and safety of the public will not be endangered."

Now, there's one semantic problem that I want to come straight at here.

You will note that the part I read first speaks of a facility of the general type proposed and speaks of reasonable assurance that a facility of the general type proposed can be constructed and operated at the proposed location.

When these hearings were being held before the Commission, a reference to the PRDC reactor, in one sense, of course, was a reference to a specific thing.

It was something at Laguna Beach that they wanted to build there and it was described by the application.

In another sense, any reference to the PRDC reactor at that stage was necessarily a reference to a general type of reactor because within the plans that had thus far been filed, a number of variance were possible and indeed, there might be changes in the specification.

So that when you -- so that this is a matter of degree of generality and it's very easy to slip here from speaking of the reactors if it were a specific thing, but when in fact, it's only a general type until the alternatives have been excluded by getting all the details of a specific set of plans.

Justice Potter Stewart: Was -- is -- is this or was this, at the time the application was made, for -- unique?

Was this --

Mr. Cox: This -- this would be the first large-scale developmental fast breeder reactor.

Now, when I say developmental fast breeder reactor, I mean the ones being used for the purpose of research and development in its use as part as a regularly operating part day in, day out of the utility grid system.

I do not mean an experimental reactor used for carrying on scientific experiment.

There was a -- had been, when the hearings were held since 1951, I think it was, certainly since 1955, an experimental fast breeder reactor that the Commission operated out in Idaho.

It all --

Justice William J. Brennan: Is that the accident?

Is that where the accident was (Voice Overlap) --

Mr. Cox: That was where the accident -- no, that was a different reactor.

The one that I referred to that had the accident in 1960 was not a fast breeder reactor.

In addition, at the time of these hearings, there was scheduled to be built another Atomic Energy Commission experimental reactor, ERB II, it was called.

And there's a fast -- there's a developmental fast breeder reactor in England at Dounreay, Scotland.

So that before this came to the stage where anybody would talk about operating it, there would've been experience with two experimental reactors and some experience with the Dounreay reactor in England.

But in terms of atomic power plants in this country, this would be the first of its type and the Commission found that that was one of the very important reasons for going ahead with it.

Justice Felix Frankfurter: You referred several times to the hearings before the Commission.

I take it in due course, you tell with particularity the nature of the hearings, who sat on the hearings and the basis of determination in connection with the hearings.

Mr. Cox: The hearings were --

Justice Felix Frankfurter: In the long time.

Mr. Cox: Well, this -- this, to say, this is a good time because I slid over it inadvertently.

The hearings were before a hearing examiner.

The Commission had a lawyer who was acting as separated staff conducting the examination of some witnesses.

PRDC was represented by counsel and the intervenors and objectors, the labor unions that are respondents here, were parties.

It was simply a hearing officer.

He took the testimony.

We have three printed volumes.

They've -- actually, the hearings went on over 67 months I believe.

And then the whole record was transferred to the Commission.

Justice William J. Brennan: He makes no findings.

Mr. Cox: He made no findings.

The Commission made findings --

Justice Felix Frankfurter: Now, before you get there, then this -- the -- the full report of the hearings before the hearing examiner and I take it leave -- leave only a fraction.

Mr. Cox: That's correct.

Justice Felix Frankfurter: I looked at one of the witnesses and particularly (Inaudible) as they know something about it and that's the woman.

His evidence in chief is not before this Court in this Circuit.

That's (Voice Overlap) --

Mr. Cox: Well, you will find one is of the unfortunate thing -- confusing things about this record is that the first two volumes of it were the record as it was in the court below, as I understand it.

Then the third volume contains certain additional things that the parties decided they want it printed.

And if my memory is right, Dr. Wallmann's testimony appears in two different volumes.

Justice Felix Frankfurter: In this testimony?

Mr. Cox: In this record --

Justice Felix Frankfurter: (Inaudible)

Mr. Cox: -- and that the direct testimony appears at Volume 3, although perhaps you were looking at the part in Volume 1 or 2.

Justice Felix Frankfurter: That wasn't the full.

Is the -- is the full --

Mr. Cox: I made that same mistake this morning actually.[Laughs]

Justice Felix Frankfurter: Well, it so happens that I have to be interested in (Inaudible)

Is the full -- the -- are the stenographic minutes of the hearings before the -- the hearing examiner with the clerk?

Mr. Cox: They've been filed with the clerk, yes.

Justice Felix Frankfurter: Now, will you go on from -- and finish before the hearing examiner taking in six or eight months, will you?

Mr. Cox: Then from the hearing examiner --

Justice Felix Frankfurter: Step by step with the full -- full Commission.

Mr. Cox: The case was transferred to the full Commission.

The Commission --

Justice Felix Frankfurter: And who are the members who sat on the grand?

Mr. Cox: Well, there were two -- I've -- I've got to give a somewhat different answer before I come to that.

There were -- the Commission made in December 1958 findings and rendered an opinion and they proposed order.

Then since there was no intermediate report of the trial examiner under its rules, now, the parties had a chance to file exceptions in briefs to the December findings and opinion.

And then in the spring --

Justice William J. Brennan: But I think that the -- December findings and opinion were based on the record without oral --

Mr. Cox: No --

Justice William J. Brennan: (Voice Overlap) --

Mr. Cox: -- I think there's been oral argument even before the December --

Justice William J. Brennan: There was, yes.

Mr. Cox: Yes.

Justice William J. Brennan: Before the finding.

Mr. Cox: Yes.

And then -- but they had a chance to file more briefs in exception.

And then in the spring of 1959, the Commission rendered its final opinion, findings and decisions.

Justice Felix Frankfurter: Different (Voice Overlap) --

Mr. Cox: There were three Commissioners who took part, Commissioner Floberg, Graham and Vance took part in the final decision and as -- also in the intermediate decision, yes.

There was only one of them, Commissioner Graham, if my memory is right, who took any part in the issuance of the provisional permit back in August 1956.

Mr. Strauss was no longer on the Commission and neither was Mr. Thomas E. Murray who had dissented to --

Justice Felix Frankfurter: Were any of these three the scientific members of the Commission?

Mr. Cox: No, none of the three.

Justice Felix Frankfurter: I know -- I know Floberg wasn't.

Were they --

Mr. Cox: No, none of the three are -- Mr. Libby unfortunately had not been able to hear the argument and therefore refused himself.

I was mentioning somewhat --

Justice Felix Frankfurter: May I -- may I trouble you.

I don't want to interrupt you.

The hearing before the three Commissioners was on the basis of the record made before the hearing examiner or additional witnesses?

Mr. Cox: No.

That was on the basis of the record before the hearing examiner.

I called attention somewhat earlier to Reg.50.35 which said that a provisional construct -- says that a provisional construction permit will issue if the Commission has reasonable assurance that a facility of the general type proposed can be constructed and operated at the proposed location without undue risk to the health and safety of the public.

And the -- one of the principal issues, of course, at the hearing, was whether that finding was warranted with respect to this reactor or not.

And it's in that connection that I was going to speak, Mr. Justice Brennan, of the possible explosion.

The Commission's safety standards are very high indeed.

They require before issuing an operating permit that there'd be a showing that no credible accident, that's very remote, no credible accident can release significant quantities of fission products into the atmosphere.

And as I understand it, they don't give you any credit for all these containment.

You have to show that the accident, the explosion can't occur.

In this case, the speculation about what is the worst possible thing that can happen in the reactor ran along these lines.

Supposed that all of a sudden, the fuel elements, in the blue part here, were to melt, just like that and suppose that despite the fact, this upward flowing sodium that for some reason, the molten fuel all of a sudden, all of it, assembled in a mass in the bottom of the reactor.

Neither of those things, anybody knows how they can happen.

But suppose they did, then there would be an explosion because you'd have a critical mass of rather high quality of fuel.

And that explosion is the one which I said might come to the equivalent of 600 pounds of TNT.

Justice William J. Brennan: Well, what's that means, the equivalent of 600 pounds of TNT?

Mr. Cox: Well, I'm -- I'm afraid if you get here beyond certain limits here, my knowledge runs out.

Justice William J. Brennan: Well, at the --

Mr. Cox: I don't --

Justice William J. Brennan: -- an explosion of 600 pounds of TNT?

Mr. Cox: That's an awful lot.

It's -- it's -- it would be --

Justice William J. Brennan: Would it blow up the building?

Mr. Cox: -- more than the ordinary boiler explosion.

Justice William J. Brennan: Well, would it blow up the building?

Mr. Cox: Oh, it would not get out.

Justice William J. Brennan: That's what I'm trying to know.

Mr. Cox: No, that's what the -- I'm sorry.

I thought I've mentioned earlier.

The building will contain 1000 pounder explosion.

And this is only 600, so it wouldn't get out.

Justice William J. Brennan: So that no -- and what -- as I get it, the conclusion is that no effects of the explosion can --

Mr. Cox: Get out of the building.

Justice William J. Brennan: The judgment now is get outside the shell --

Mr. Cox: That's right.

Justice William J. Brennan: -- which is the building.

Mr. Cox: That's right.

But nevertheless, and here is the point, I make, nevertheless, the Commission took the view that before it could permit such a reactor to operate, the applicant must demonstrate that such an explosion couldn't occur, that this hypothetical thing couldn't happen.

Now, in theory, it shouldn't be able to happen because when the heat in a reactor goes off, a great many things happen.

But one of the things that happen is that the fuel expands and each atom gets a little farther apart from every other atom.

And therefore, it should take a little longer for the neutron to get to it and cause a fission.

And this should slow down the rate of reproduction.

Nevertheless, at the time of the hearings, ERB I, the first of these experimental fast breeder reactors, had partially melted down in 1955.

It was during a time when a great many safety mechanisms were disconnected.

But the fact was that it had happened and this seemed to indicate possibly that there was something about fast breeder reactors, which made the theory I just tried to state very simply, insufficient.

Now, at the time of the hearing, the -- there was a theoretical scientific explanation for the meltdown at ERB I.

If you conceive of a hotspot in the inside of the reactor here, the inside of the blue, then the pins and the entire fuel element, the side nearest the heat should get hotter than the side away from the heat, this might make it expand and this might make the whole thing bow inward.

And this would bring the fuel closer together and might therefore cause a speeding up of the reaction.

And this was what the scientist thought, at the time of the hearing, was the explanation for the meltdown in ERB I, but nobody had empirically proved it.

It has been proved today.

There's -- there's no question about it now, but at the time of the hearing, it hadn't been empirically proved and that's why the Commission said, "We think it's going to prove out a certain way, but at this stage, we can't be sure."

There was also before the Commission at the hearing evidence of three ways of preventing any future bowing, upholding the fuel elements rigidly in place.

But at that stage, no one had proved, again empirically, whether any what -- whether the three ways would be successful.

They have now proved by very elaborate tests, although it came after the hearing that this honeycomb construction -- that's what the honeycombs do, they hold the fuel elements rigidly in place and the larger subassemblies are also locked in place in a way that they can't bow.

Now, against the background of this illustration, I suggest to you that the Commission's findings, to which I now turn, become quite plain.

And if the Court will look at page 706 which is in Volume 2, I'd like to call your attention to the concluding findings.

In Finding 18, the Commission turned its attention to this very type of problem and found first, it has not been positively established that a fast breeder reactor of the general type and the power level proposed by applicant can be operated without a credible possibility of releasing significant quantities of fission products to the environment.

Justice William O. Douglas: Where are you reading?

Mr. Cox: Page 706, folio 7018.

It's at the bottom.

Justice William O. Douglas: Thank you.

Mr. Cox: So that there, the Commission acknowledged that it hadn't been positively proved that this meltdown couldn't occur.

I'm using the meltdown only as an illustration.

There were safety -- other safety problems, I don't want to mislead you.

But this was the most difficult and I think it shows the meaning of the finding.

Then it went on and said there is reasonable assurance that theoretical and experimental investigations which have been undertaken, together with operating experience on these various other fast breeder reactors, will establish definitely whether or not the reactor proposed by applicant can be so operated.

And then finally, there is reasonable assurance that evidence will establish that the reactor proposed by applicant can be so operated.

In other words, it was making a judgment at this stage as to what further research and development would establish before the reactor could be operated.

Justice Felix Frankfurter: Well, now, that was on the basis of testimony elicited before the hearings, as I know it, is it not?

Mr. Cox: That is correct.

Justice Felix Frankfurter: And I'd like to ask you as to that, the nature of that -- of the witnesses.

Take for instance the one that's (Inaudible) at least to me for preservation.

Was he a witness for the Commission or a witness for the -- for the PRDC?

Mr. Cox: He is in -- he is in -- in a consulting capacity to PRDC.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Cox: The witnesses -- the -- there were some witnesses called by the Commission, others called by the applicant and others called by the intervenor.

Justice Felix Frankfurter: But the Commission itself called witnesses disinterested --

Mr. Cox: Oh, yes.

Justice Felix Frankfurter: -- insofar as --

Mr. Cox: Yes.

Justice Felix Frankfurter: -- PRDC is concerned.

Mr. Cox: Oh, yes.

Justice Felix Frankfurter: Disinterested with (Voice Overlap) --

Mr. Cox: Oh, yes.

Justice Felix Frankfurter: -- of a (Voice Overlap) --

Mr. Cox: Nearly all the members of this Advisory Reactor Safeguards Committee testified.

Justice Felix Frankfurter: Those were -- those were well-known physicists.

Mr. Cox: Well, Dr. Harvey Brooks at Harvard and whether a number of them listed in the -- they were well-known physicist and there was -- this is a very -- what I've giving is a very crude exposition of what the scientist testified to at great length.

And they concluded their testimony using somewhat different phrases, but nearly all of them concluded their testimony by saying "We think that this thing will prove out before --

Justice Felix Frankfurter: But this was not -- these were not conclusions based on contending claims by two selfishly interested parties.

Mr. Cox: No.

There was also independent witnesses from the Commission and the Commission's staff is constantly following this all the time and of course, is constantly following it all the time now.

Justice William J. Brennan: Now, Mr. Solicitor, now, these -- these were in the nature of predictions of what would be the results of then are current theoretical and experimental investigations.

I think you said one's advice was, to some of them, empirically, some of these things have been proved.

Mr. Cox: A -- a number of them have now been empirically proved.

Justice William J. Brennan: Now --

Mr. Cox: For example, let me use the -- just to be specific.

Let me take this instance of the meltdown.

They rebuilt the core of ERB I and they put it through with the proper instruments there through the same sort of conditions that it operated before and they found that the fuel elements did bow in.

Justice William J. Brennan: Now, has there been any record made in the way additional hearing or otherwise --

Mr. Cox: No, because that -- that will come up later.

You see, the provisional construction permit, while it is based on a finding that there was reasonable assurance that this thing would prove out, it is also conditioned upon the Commission's -- really make a number of determinations.

First, it must be found that it's been built, this is in the statute.

Second, it must be found that the necessary information has been furnished.

Third, there must be a finding that it will operate in accordance with the statute and the Commission's regulations.

And as part of that, because it's in the regulation, there must be this finding that the final design, that means every last job will operate in such a way that it will not cause a risk to the health and safety of the public.

Justice William J. Brennan: Well, I suppose really what I'm getting at, is there anything in the record would support what you told us or are you telling us something would --

Mr. Cox: No, I'm -- would -- as the record stands before you, these were predictions --

Justice William J. Brennan: Yes.

Mr. Cox: -- made by scientists in a contested case.

Justice William J. Brennan: And you're (Voice Overlap) --

Mr. Cox: They aren't my predictions.

Justice William J. Brennan: You're what -- you're -- you're now telling us what the Commission, I gather, as advised you, has been the results of this occurrence.

Mr. Cox: And it -- but it -- I'd -- I again don't want to go beyond what's proper.

This is informal information.

And I'm simply -- I'm really giving it to the Court not to claim that this has proved safe because that's not the issue here.

That'll come up on the hearing of the operate.

I'm giving it to the Court simply to illustrate this process of saying that -- of inquiring first, is there a good enough chance that this will prove safe?

That the --

Justice William J. Brennan: Well, we can't -- I -- I gather, we can't reach our decision based on what you have told us, namely, that these -- and that these experiments have in fact --

Mr. Cox: No, I -- I --

Justice William J. Brennan: (Voice Overlap) of the --

Mr. Cox: What -- what we're asking you to do is to find -- is to rule that this finding that there was reasonable assurance that a reactor of the type proposed could be operated without danger to the health or safety of the public --

Justice Felix Frankfurter: 50 years --

Mr. Cox: -- is enough under the statute --

Justice William J. Brennan: That's --

Mr. Cox: -- for the construction permit to issue.

And I've got to come, if I don't' get too lost in the effect, I've got to come to argue that point, of course.

Justice Felix Frankfurter: Well, I don't want to pull you up on whatever further new provisions.

The fact is necessary but it will help me very much.

Indeed, I should have asked this question to you earlier.

It will help me very much in taking in your fact or shaping my mind toward understanding the relevance of what you tell us.

If you will tell without arguing just precisely what our function in relation to this problem is, (a) do we sit in judgment on the validity of the prophetic conclusions which the Commission drew, at the de novo, say, at a de novo judgment, (b) do we sit in judgment on the criteria which the Commission applied insofar as it revealed its criteria in passing judgment on the fact, bearing in mind that Learned Hand's admonition, when he was a very young District Judge, of the competence of judges to pass on these kinds of technical matter far simpler than these are.

Mr. Cox: The answer -- your first question is that you clearly do not pass de novo on the Commission's findings or expert judge -- judgment as to safety.

As I'll point out later, the question of those findings, and I will argue, the standards to be set up or all coveted by the Commission -- to -- to the Commission by the statute.

I -- I should also say that as I understand it, there is no argument here that such findings as the Commission made were not supported by its substantial testimony.

There is some argument about what the finding mean but there's ample -- I think it's conceded that there's ample evidence to support them.

So you don't have to go behind them in any sense.

Now, the second question --

Justice Felix Frankfurter: As to the standard by which allowable judgment on the facts were based.

Mr. Cox: I'm --

Justice Felix Frankfurter: Do we --

Mr. Cox: I'm not sure --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Cox: -- I really understand that question.

Justice Felix Frankfurter: Well, facts have to be -- the findings on facts are based on certain criteria for determining what the conclusion -- what the allowable conclusions from those facts are.

What I want to know --

Mr. Cox: You're speaking of the scope of reviews, substantial evidences --

Justice Felix Frankfurter: (Voice Overlap) the scope of review, but what -- how do they ascertain that?

Maybe they made a wrong -- maybe they judged whether these safeguards were adequate by applying the -- the wrong notion of what a safeguard should be.

Mr. Cox: Oh, well, there's -- it's been agreed all along that the Commission's standard of reasonably safe complies with the statute.

There's -- there's --

Justice Felix Frankfurter: Did they apply those standards in this case?

Mr. Cox: It's a -- I -- yes, I think it's agreed that they applied those standards in this case by difficulty and perhaps, I'd better jump on to it, is that there is some argument about the meaning of the findings.

Now, let me --

Justice Hugo L. Black: May I ask just this one question?

I don't want to disturb you.

Have you stated your questions correctly in your questions presented?

Mr. Cox: I think so, except that we have omitted one question that the respondent interjects.

Now, if I might just get to the concluding finding of the Commission, I think that then, some of these questions -- the answer to some of these questions would become clear.

I'd summarize the findings having to do with the safety of the reactor.

Then, the next groups of findings, 19 through 21, have to deal with the site.

And the Commission found that the site, if this problem of meltdown and other safety problems could be solved, that there reasonable assurance that the site would prove satisfactory.

Then in Finding 22, the Commission finds, and this is the concluding finding, now, I think in here is the answer to your question, Justice Frankfurter.

The Commission finds reasonable assurance in the record for the purposes of this provisional construction permit that the utilization facility of the general type proposed in the PRDC application and amendments thereto can be constructed and operated at the location without undue risk to the health and safety of the public.

Now, it is agreed, Justice Frankfurter, that the Commission's standard of undue risk to the health and safety of the public is as high as the statute requires.

That is phrased by the Commission in terms of a required showing that no credible accident will release significant quantities of fission products to the surrounding atmosphere.

And it's agreed that that is high enough to meet the requirement of the statute.

The point which is in dispute and the issue in addition of -- to the questions stated in our brief that is here, Mr. Justice Black, is whether this phrase for the purposes of this provisional construction permit somehow waters down or denigrates Finding 22.

Let me be even more explicit and I will then move on to begin to argue some of the points of law.

Section 50.35, which I referred to earlier, provides that a construction permit may be issued, this is one of the Commission's regulations under the statute, if the Commission has information sufficient to provide reasonable assurance that a facility of the general type proposed can be constructed and operated at the proposed location without undue risk to the health and safety of the public.

Justice Hugo L. Black: That's for construction.

Mr. Cox: No.

Constructed -- this is for issuing a constructed permit --

Justice Hugo L. Black: That's what I'm asking.

Mr. Cox: -- but the finding pertains to construction and operation.

And -- now, if you look at Finding 22, you will find that it uses exactly the language of Reg.50.35 with one exception.

The exemption is that 22 includes, for the purposes of this provisional construction permit, and as I understand Mr. Sigal's brief, he argues that the inclusion of that phrase watered down the kind of assurance that the Commission found and therefore, it prevents the finding from complying with Reg.50.35.

So that in addition to the two questions of statutory interpretation posed in our brief, there is this additional question, whether Finding 22 and the other subsidiary finding complies with the Commission's own regulations.

Justice Felix Frankfurter: I'd like to ask you whether you will be considering a phrase that doesn't reveal itself, the meaning of which is not to reveal itself made by it.

In Section 185, "All applicants for licenses to construct or modify production or utilization fact -- facilities shall, if the application is otherwise acceptable to the Commission," I don't know what that means, but does that play any part in this case?

Mr. Cox: Section 185 does, yes.

Justice Felix Frankfurter: Yes, but that particular (Voice Overlap) --

Mr. Cox: No, I don't think that anybody rely --

Justice Felix Frankfurter: -- if the application is otherwise acceptable.

Mr. Cox: I don't think anyone puts any stress on that phrase because I don't think anyone knows what it means.

Justice Felix Frankfurter: It's quite cryptic, isn't it?

Mr. Cox: It's very cryptic.

I take it, it means is acceptable except in the sense that it's an application for a preliminary permit and is therefore subject to certain limitations that would not be true of an application for a final permit.

Justice Felix Frankfurter: And I suppose, does it mean that they may reject for -- for reason that isn't specifically spelled out in the statute?

Mr. Cox: Well, it's a --

Justice Felix Frankfurter: Anyhow --

Mr. Cox: Might I --

Justice Felix Frankfurter: -- you say -- you --

Mr. Cox: -- postpone that for a moment.

That I -- might I just, for a moment, speak further to the question of whether the findings comply with the regulations, then I will direct myself to the critical question as the Court of Appeals saw it, whether this two-step procedure conforms to the statute.

We think that the answer to the question whether the findings conform to the regulations is supplied by simply putting Finding 22 next to Reg.50.35.

It's conceded here that the Commission stated the issue in the notice of hearing in terms of Reg.50.35.

It stated it, at those terms, several times in the course of its opinion.

It states it in terms of -- in those terms in Finding 18, which I read, to illustrate the difference between general assurance as to what investigation would prove and a specific finding of safety of operation.

And it uses the very language of 50.35 here in 22 except for this phrase, "For the purposes of this provisional construction permit".

And we think to suppose that the Commission had followed a proper standard all the way up to this point, and then also, it used the words of the regulation to suppose that it suddenly had a different meaning here is simply to accuse it of nonsense.

In fact, the -- for -- the parenthetical phrase serves a useful function.

It states -- it modifies fines and states the purpose for which the finding is made.

It has nothing to do with the quality of assurance or the quality of the safety.

And that it says we're making this finding only for the purposes of the provisional construction permit.

This saves the rights of the objector.

It's a warning to PRDC that we aren't passing on anything more than the construction permit now.

And when you read the opinion, you will find they said over and over again that you're going forward at your parent, that we are not committing ourselves beyond finding that this is likely enough to prove out for us to permit you to risk your capital, if you wish to do it, since that will increase our knowledge and your knowledge even if the reactor is never built.

We think it's likely enough so that it isn't wasted.

Justice Felix Frankfurter: Is the suggestion that the capital at risk is very considerable in these things, isn't it?

Mr. Cox: It is.

Justice Felix Frankfurter: And therefore, a provisional -- a provisional grant carries with it a momentum of future acquiesces.

Is that the argument?

Mr. Cox: That argument is made.

I think the answer to it is two-fold.

First, that everything possible to prevent the momentum has been done here, the -- the record replete with warning.

And second, that when one is dealing with something as momentous as the health and safety of the public and the worst kind of accident, that the momentum of the financial investment wouldn't be very great.

After all, we are reaching the point in science and engineering where people do expend large sums on research and development and sometimes it doesn't prove out.

That's not an unknown --

Justice Felix Frankfurter: And it isn't the Commission's money anyhow.

Mr. Cox: It's not the Commission's money.

Now, the second question and the one that the Court of Appeals was chiefly concerned with is whether this two-step procedure on the findings conforms to the statute.

The Atomic Energy Act of 1954 made a new departure from the previous monopoly that the Government had had of all atomic energy and the aim is stated by Congress was to encourage private participation in the peaceful development of atomic energy.

In order to set up the necessary regulation, the statute provides a very detailed licensing scheme for all transfers of fissionable material, for constructing or operating facilities for using them, even for an individual operator's license before you can be at the control board of a reactor.

The licensing sections, you will find beginning at page 109 of our brief, Section 101 simply forbids all kinds of conduct without a license.

Section 103 at the bottom of page 109 provides for the issuance of commercial licenses, and I would point out that in subsection (b), over on the page 110, “The Commission is authorized to issue licenses to people who are equipped to observe and who agree to observe such safety standards to prevent health and to minimize danger to life or property as the Commission may, by rule, prescribe."

In other words, the safety standards under 103 are clearly delegated to the Commission's rules.

Justice Potter Stewart: Are these -- are these construction licenses are operation -- operating licenses or both?

Mr. Cox: This applies to licenses for commercial facilities.

Later on in a section that I'd like to postpone coming to, Justice Stewart, there is a declaration that a construction permit shall be deemed a license, and it would be license for a purpose of 103.

Then Section 104b authorizes the issuance of licenses for developmental reactors, that's what we have here.

And it provides that in issuing licenses, 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 and to protect the health and safety of the public.

And I emphasize again that it's the amount of regulation imposed by the Commission as will permit it to fulfill its obligations to protect the health and safety of the public.

And over on a 112 down at (d), just before Section 105, there's a prohibition against issuing a license if, in the opinion of the Commission, the issuance of a license to such a person would be inimicable to the heath and safety of the public.

And you will find in Section 161 a very broad general rule making power giving the Commission authority to make rules necessary to protect the health and safety of the public.

Our view is, taking these sections of the Act first, that although Congress was obviously greatly concerned about safety as anyone would be, that it delegated that responsibility to the Atomic Energy Commission.

And we think it's also quite clear from these provisions that the Commission was given full power to issue regulations dealing with safety, including regulations proscribing the findings to be made at the various stages of the construction and bringing up to power of a developmental reactor.

And so that so far as these sections of the Act are concerned, it seems perfectly plain that the two-step procedure was within the statutory authority.

The argument in the court below revolves very largely around Sections 182 and Section 185.182 begins over on page 123 of our brief.

It describes what should be contained in license applications.

You'll note at the very beginning, each application for a license shall be in writing and so forth.

Then the second sentence, in connection with applications for licenses to operate production or utilization facilities, the applicant shall state such technical specifications, and I omit some words and such other information as the Commission, made by rule or regulation, deemed necessary in order to enable it to find that the utilization or production of special nuclear material will provide, on the next page, adequate protection of the health and safety of the public.

Then, Justice Stewart, on page 126, you'll find the sections dealing with construction permits.

The first sentence authorizes the issue of construction permits.

Justice Hugo L. Black: What page was that?

Mr. Cox: 126 of our brief.

First sentence says that, "Applicants for licenses shall, if the application is otherwise acceptable, be issued a construction permit."

And then it goes on and provides what shall be in the permit, and finally that, "Upon the satisfaction of certain conditions," that I stated earlier, four of them, including meeting the requirements of the Commission's regulations, "a license to operate shall be issued”.

Then you will find the last sentence reads, "For all other purposes of this Act, a construction permit is to be deemed a license."

The respondent's argument is that relying on this sentence, one must read construction permit into the language in Section 182 which reads, "In connection with license -- with applications for licenses to operate production or utilization facilities, the applicant shall state certain information as will enable the Commission to find and so forth."

Now, it seems to us that there are three self-sufficient answers to that contention.

The first is that the second sentence of Section 185 is not applicable to licenses generally, but only to licenses to operate construction or utilization facilities.

And we think the most meaning that can be given to this final sentence of 185 is that an application for a construction permit shall be the -- the equivalent of licenses generally, but not equivalent to any particular license or every particular license.

Now, that at first blush may sound a little extreme.

But I point out that the Act does set up specifications in some places for particular kinds of licenses.

And in other places, it speaks of licenses generally.

For example, is the section that deals with a license to be an operator of an individual, a reactor and clearly, a construction permit isn't equivalent to that kind of license.

Justice Hugo L. Black: May I ask you one question but I don't want to delay you at all.

But do -- suppose you are wrong on this clause --

Mr. Cox: Well, that --

Justice Hugo L. Black: -- and that this is a license permit, are there findings -- permit to operate, are there findings with which you say the findings would support that?

Mr. Cox: Well, we don't -- the -- the Commission stated that it did not make the kind of finding that it deemed necessary for a license to operate.

There's no -- there's no doubt about that.

Justice Hugo L. Black: Well, this is a crucial --

Mr. Cox: So I think this is a crucial point in the case.

Justice William J. Brennan: Well, this is really a -- is this really what we have to decide in this case?

Mr. Cox: This question in the statute?

Justice William J. Brennan: (Voice Overlap) very question?

Yes, this question.

Mr. Cox: This -- this is certainly one of the major -- yes.

Justice William J. Brennan: Well, one, what else is --

Mr. Cox: Well, the other question which I think is in the case, although I am not sure, is the alternative ground of opinion in the court below.

The court below seemed to say that in order to issue a construction permit for a reactor near a large city, the Commission must make a special finding that there were compelling reasons for putting it there.

Justice William J. Brennan: Rather than that in the deserts?

Mr. Cox: Rather than that in the desert someplace and the Commission didn't make that kind of finding.

Now, I don't really think this is a very serious issue.

The respondent's don't stand on it.

You can go all through the statute and try to find any mention of compelling reasons.

And in addition, it's contrary to the established practice of the Commission.

So I think in terms of the meaning of the statute, this is the critical issue in the case.

My second answer, so far as the words go, is that the respondent's argument ignores the limitation at the end of Section 185 for all other purposes of this Act, a construction permit is to be deemed the license.

Now, I take it that means purposes other than those implied by 185.

It would seem to me quite clear from reading 185 that one of its purposes is to authorize a construction permit before you have got all the information.

Indeed, it speaks of the case where the applicant isn't able to supply all the information and speaks of finding it later before the license to operate is furnished.

Then the third answer, which, again, I think is complete, is that Section 185 -- 182a does not proscribe the making of any particular finding.

If you will read it carefully, you'll see that it reads that in filing an application for a license for operating, the applicant shall include certain kinds of information that will enable the Commission to make a finding, but it doesn't say when those findings are to be made, nor does it say anything about what specific finding is to be made at any specific time.

And it seems to me that the authority for the findings and the ruling the statutory provision is governing the findings that the Commission is to make are those in 104 that I called your attention to earlier and which it has detailed to some extent in its regulation.

Now, if there is any doubt on the meaning of the statute, it would seem to us that that is clear enough by the uniform interpretation of the Commission and the Congressional acquiescence.

It's perfectly clear that in all the other cases of developmental power reactors, this two-step procedure has been filed.

We've quoted the permits in our reply brief one at a time, so there can't be any argument on that.

Justice William O. Douglas: Has -- has any license been refused where there was a construction permit issued?

Mr. Cox: No, most of them -- let's see, I think they've only been three operating licenses issued.

Justice William O. Douglas: Well, I thought that there were 115.

Mr. Cox: I'm -- I'm thinking of the developmental power reactors.

Justice William O. Douglas: Oh, oh.

Mr. Cox: One of the reasons for that, Justice Douglas is that even today there is a constant review and laying down of requirements of what should go into this reactor.

There's constant working together between the staff of the Commission, the PRDC and copies are all given to the intervenors, and they're welcome to participate in the discussion.

So, I guess you really know pretty much before you come on to the final hearing of what the Commission is requiring.

And that, of course, reduces the chance that it would be denied.

Now, I said that all -- in every previous case, this same two-step procedure has been followed.

It is also true that the two-step procedure on several occasions has been explained to the Joint Committee on Atomic Energy (Inaudible).

There, I think, can be no doubt about that.

And there has been the equivalent of acquiescence.

The only way in which the consistent interpretation by the Commission and the reports to the -- to the congressional committee can be distinguished from this case is by that phrase, "For the purposes of this construction permit."

That phrase did not appear in the hearings or licenses, construction permits issued earlier.

This was, indeed, the only contested case, and it seems to me that anyone who reads the thrust of the whole findings will see that this was put in in order to make it plain that they were proceeding only a step at a time, and that they weren't either giving the company right or foreclosing any rights on the part of the respondent.

Chief Justice Earl Warren: Mr. Sigal.

Argument of Benjamin C. Sigal

Mr. Benjamin C. Sigal: Mr. Chief Justice, may it please the Court.

I should like to review at the outset, some of the safety considerations which I fear were not adequately explicated by the Solicitor General.

Justice Hugo L. Black: Before you do that, would you mind stating if you agree with the Government that the issue before us is the issue stated in the Government's brief, as the questions presented?

Mr. Benjamin C. Sigal: No, Your Honor.

We think that the issue as stated in our brief --

Justice Hugo L. Black: In your brief.

Mr. Benjamin C. Sigal: -- is more clearly and explicitly sets forth the issue.

Now, that -- on page -- page 2.

Now, our -- our position is that the Commission failed to make the necessary findings with respect to safety and that it failed to make -- specifically to make a finding with -- at the time that it issued the construction permit, that there was information sufficient to provide reasonable assurance that the reactor could be operated at the proposed site without undue risk to the health and safety of the public.

Justice Felix Frankfurter: Your -- that question, your question presented, your number one was not directly, does it, by implication challenge the so called two-step procedure?

Mr. Benjamin C. Sigal: No, Your Honor.

I think it does not challenge it.

There --

Justice Felix Frankfurter: Do you challenge --

Mr. Benjamin C. Sigal: -- there are two -- pardon.

Justice Felix Frankfurter: Do you challenge it?

Mr. Benjamin C. Sigal: We challenge the two-step procedure as defined and explained by the Government.

We say that the two-step procedure, which is set forth in the law and in the regulations, is different from the two-step procedure which they -- which the petitioners claim is the procedure.

Justice Felix Frankfurter: Now, let me ask you this.

Either requirements or findings -- absence of undue risk for the construction permit, are they eidetic from your point of view of those that you'd governed, granting an operation of permit?

Mr. Benjamin C. Sigal: The formula is the same, that is, that when the construction permit is issued, we say there should be a finding that the Commission should make a finding that it has information sufficient to provide reasonable assurance that the reactor can be constructed and operated at the proposed site without undue risk.

Then, when it comes to making the final inspection, they make another finding of the same kind, namely, that they have reasonable assurance that the reactor can be operated without undue risk to the health and safety of the public.

Justice Felix Frankfurter: Is yours -- is your view of the statutes permit the Commission to have a prophetic view or a tentative, a more or less tentative view, whatever your high standards may be, for determining that safety is safeguarded and a different or stiffer (Inaudible) with greater knowledge -- view when it comes to granting an operational ground?

Mr. Benjamin C. Sigal: The statute itself doesn't spell this out with -- as much explicitness as might be desired.

Justice Felix Frankfurter: But that this spell out that there are two stages separated in time.

Mr. Benjamin C. Sigal: It does set out in Section 185 that when the -- after the issuance of the construction permit, when the Commission is satisfied that the conditions of the construction permit have been complied with, then a license may issue.

So that the second step, as we see it, consists primarily of a determination that the applicant has complied what the conditions of the permit.

Justice Felix Frankfurter: Well, this -- is the -- is the final grant merely a duty of ascertaining whether the conditions for the construction grant have been satisfied?

Mr. Benjamin C. Sigal: Substantially, yes.

That is the point.

Justice Felix Frankfurter: Well, I don't know what substantially means.

Mr. Benjamin C. Sigal: Well, the --

Justice Felix Frankfurter: We take into account additional or different or differently demonstrated circumstances.

Mr. Benjamin C. Sigal: That is a matter of interpretation, Your Honor.

We -- in our view --

Justice Felix Frankfurter: A matter of what?

Mr. Benjamin C. Sigal: I say it is a matter of interpretation, of course, as to whether they can consider other matters.

But it is our view, as I will explain in greater detail, that both the Section 185 and the regulations of the Commission itself indicate that the primary conservation which the Commission should have before at the time that its -- permits operation to go forward is, has the applicant conformed to the terms of the construction permit.

And if it has, then the -- a permit to operate should be granted.

Now, of course --

Justice William J. Brennan: But the -- but the -- preliminarily, before the construction permit is issued, as I get you, the finding must be made which the Government says does not have to be made until the operating license.

Mr. Benjamin C. Sigal: Exactly.

Justice William J. Brennan: Is that it?

Mr. Benjamin C. Sigal: Yes.

Now --

Justice Felix Frankfurter: Well, does the Government -- does the Government's argument state or imply that when they grant a construction permit, they can be indifferent to how the thing will work out by operation?

Mr. Benjamin C. Sigal: Well, the Government argues --

Justice Felix Frankfurter: Well, are they concerned -- are they concerned merely whether the construction of the thing sufficiently takes that light?

Are you suggesting that they don't have to bother about a forecast whether that, which is to be constructed, is likely to be safeguardedly operated?

Mr. Benjamin C. Sigal: Oh, no, no.

We -- we -- there's no such contention.

Our -- our position is that they must have a reasonable assurance that it can be constructed and operated safely.

Justice Felix Frankfurter: Does the Government deny that?

Mr. Benjamin C. Sigal: The Government denies that that's our -- is our contention, yes.

Chief Justice Earl Warren: You may answer -- [Laughter]

Print this transcript Transcript: 

Argument of Benjamin C. Sigal

Chief Justice 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.

Mr. Benjamin C. Sigal: Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Sigal, you may continue.

Mr. 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.

Chief Justice 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?

Mr. Benjamin C. Sigal: Well, is -- is your question as to whether the Government can make changes?

Chief Justice Earl Warren: Well --

Mr. Benjamin C. Sigal: I don't argue -- it wasn't the word that that question was raised?

Chief Justice 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.

Mr. Benjamin C. Sigal: Oh, no.

No, I -- if I --

Chief Justice Earl Warren: Alright, is there any limitation on what they can do to make it more safe?

Mr. 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.

Chief Justice Earl Warren: Yes.

Mr. Benjamin C. Sigal: And they asked for permission to -- for a construction permit and they themselves, set forth the specifications of the reactor.

Chief Justice Earl Warren: Yes.

Mr. 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.

Chief Justice 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.

Mr. Benjamin C. Sigal: Well, --

Chief Justice Earl Warren: I --I --

Chief Justice Earl Warren: And I thought you didn't agree with that.

Mr. 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.

Chief Justice 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.

Mr. Benjamin C. Sigal: They have that authority, yes.

Chief Justice Earl Warren: They have that authority.

Mr. 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 --

Chief Justice 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.

Mr. Benjamin C. Sigal: Well, that we say is --

Chief Justice Earl Warren: Even though they have the permit.

Mr. Benjamin C. Sigal: In our view, that is not in the contemplation of the law.

Chief Justice Earl Warren: Yes.

That's right.

That's all I want to know what the difference (Voice Overlap) --

Mr. 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.

Justice 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?

Mr. Benjamin C. Sigal: No, the Commission says, it is not obliged to do so.

Justice Felix Frankfurter: I'm not talk -- I'm not talking about the condition, I want to know what you think.

Mr. Benjamin C. Sigal: In --

Justice 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?

Mr. Benjamin C. Sigal: Yes, yes.

But the law also contemplates that the necessary finding would be made prior to the time construction began.

Justice Felix Frankfurter: I understand that.

I understand that.

Mr. Benjamin C. Sigal: Yes.

Justice 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.

Mr. Benjamin C. Sigal: But they didn't make the finding, Your Honor, (Voice Overlap) that's -- that's the problem.

Justice 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.

Mr. 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."

Justice 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?

Mr. Benjamin C. Sigal: Mr. -- Mr. Justice Franker, I fairly understand --

Justice Felix Frankfurter: If you don't want to answer, don't.

Mr. 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 --

Justice Felix Frankfurter: Of course if they haven't completed it, they haven't completed it, therefore, they can't operate.

Mr. Benjamin C. Sigal: Yes.

Justice William O. Douglas: But your --

Justice Felix Frankfurter: I'd assume that they would operate.

Justice 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.

Mr. Benjamin C. Sigal: The same formula.

Justice William O. Douglas: Yes.

Is that right?

Mr. Benjamin C. Sigal: That's right.

The same formula, that is that we -- at the time of --

Justice 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.

Justice Felix Frankfurter: But if this Court holds that the findings were satisfy, then the necessarily findings were made.

Justice William O. Douglas: Then you've lost your case.

[Laughter]

Justice William O. Douglas: I think that's --

Justice Felix Frankfurter: And well, how will I know about the consequences of that loss?

Mr. Benjamin C. Sigal: That is the question.

Justice 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.

Mr. Benjamin C. Sigal: If the -- if the construction conditions were met, yes.

Justice 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?

Mr. 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.

Justice Hugo L. Black: What's that?

Mr. 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.

Justice Hugo L. Black: Now, you say that they have or have not made that finding?

Mr. Benjamin C. Sigal: We say they have not made it.

Justice 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.

Mr. Benjamin C. Sigal: Well, Your Honor --

Justice Hugo L. Black: Is that it?

Mr. Benjamin C. Sigal: That's not possible.

No, what I mean is --

Justice Hugo L. Black: So what do you say about this?

Mr. 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.

Justice 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?

Mr. Benjamin C. Sigal: No.

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.

Justice Hugo L. Black: Well, has that finding been made?

Mr. 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.

Justice Hugo L. Black: So why then do you say -- I hate to ask you too many questions but I -- I'm a little confused.

Mr. Benjamin C. Sigal: That's alright.

Justice Hugo L. Black: Why then do you say that -- if this -- do you say this first finding has not been made?

Mr. Benjamin C. Sigal: That's right.

Justice Hugo L. Black: You, therefore, say they do not have any right to get a construction permit?

Mr. Benjamin C. Sigal: That's right.

Justice 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?

Mr. 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.

Justice Felix Frankfurter: Neither does the Solicitor General.

Mr. 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.

Justice Hugo L. Black: Well, I'm realistic more in what you say now?

Mr. 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.

Justice Hugo L. Black: Now, you say this finding has not been made, is that it?

Mr. Benjamin C. Sigal: That's right, we say this finding.

Justice Hugo L. Black: Is that the basis of your argument?

Mr. Benjamin C. Sigal: That's the substantially the basis of the argument.

Justice Hugo L. Black: If you are wrong in that, what happens then?

Mr. Benjamin C. Sigal: If we are wrong, then this construction permit was validly issued.

Justice 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?

Mr. Benjamin C. Sigal: Well, they had issued it.

Justice Hugo L. Black: Well, you say it's alright?

Mr. 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 --

Justice Hugo L. Black: That is -- is that right here?

Mr. 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.

Justice Hugo L. Black: You say they have not made it in substance?

Mr. 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.

Justice William J. Brennan: 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.

Mr. Benjamin C. Sigal: Yes, sir.

Justice William J. Brennan: 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 --

Mr. Benjamin C. Sigal: No, not in words.

Justice William J. Brennan: They are the identical things?

Mr. 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 --

Justice William J. Brennan: Well, I may -- I mean to the -- the first one, is the Commission, "Has information sufficient to provide reasonable assurance."

Mr. Benjamin C. Sigal: Yes.

That's the --

Justice William J. Brennan: The second one is that the final design provides reasonable assurance.

Mr. Benjamin C. Sigal: Yes.

Justice William J. Brennan: Was there a difference between them?

Mr. 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 --

Justice William J. Brennan: 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.

Mr. Benjamin C. Sigal: Well, that was --

Justice William J. Brennan: That the final design does provide reasonable assurances?

Mr. 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 --

Justice William J. Brennan: I'm getting back to where you and I left off --

Mr. Benjamin C. Sigal: Is there a difference in reasonable assurance?

Justice William J. Brennan: 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.

Mr. 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.

Justice 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?

Mr. Benjamin C. Sigal: The 34 (Voice Overlap) --

Justice Hugo L. Black: 34 and 35, upon which the Government relied.

Well, the purpose --

Mr. Benjamin C. Sigal: No, they're -- they are relying, Your Honor --

Justice 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.

Mr. Benjamin C. Sigal: Precisely.

Justice Hugo L. Black: And you were saying that it's necessary under the statute.

Mr. Benjamin C. Sigal: And under the regulation.

Justice Hugo L. Black: It says -- can be constructed and operated that they should've had the finding say both as to construction and operation.

Mr. Benjamin C. Sigal: Yes.

Justice Hugo L. Black: And that they have not done.

Mr. Benjamin C. Sigal: That -- that we say they have not done.

Justice John M. Harlan: Isn't the master finding number 22?

Chief Justice Earl Warren: 22.

Mr. Benjamin C. Sigal: Yes.

Justice John M. Harlan: Not 34?

Mr. Benjamin C. Sigal: Master finding is --

Justice John M. Harlan: 22.

Mr. 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.

Justice John M. Harlan: 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?

Mr. 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 --

Justice John M. Harlan: It wouldn't be adequate.

Mr. 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 --

Justice 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.

Mr. 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) --

Justice Hugo L. Black: I thought that was the question were, maybe I'm wrong.

Mr. 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.

Justice Hugo L. Black: May I ask you, nothing has been said about the word proposed location.

Mr. Benjamin C. Sigal: Yes, sir.

Justice Hugo L. Black: And I have not it's stated, what is the proposed location with reference to people that around it?

Mr. Benjamin C. Sigal: You mean in this case?

Justice Hugo L. Black: In this case.

Mr. 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.

Chief Justice Earl Warren: How many miles, you say?

Mr. Benjamin C. Sigal: About 30 miles.

Chief Justice Earl Warren: 30 miles.

Mr. 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.

Justice 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) --

Mr. 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.

Justice Potter Stewart: Well, that aspect of regulation is true.

Mr. Benjamin C. Sigal: Yes.

Well, now we're talking about the safety.

Justice Potter Stewart: That -- that aspect is true.

Mr. 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.

Justice John M. Harlan: If your finding is sufficient, you're not attacking the sufficiency of the evidence to support the finding?

Mr. Benjamin C. Sigal: No.

Justice John M. Harlan: You certainly couldn't be called on to review that.

Mr. Benjamin C. Sigal: No, we are not attacking the sufficiency of the evidence.

Justice John M. Harlan: Well then, I don't quite understand your argument.

Mr. 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 --

Justice Felix Frankfurter: Mr. Sigal I don't quite follow why there is built-in disability (Inaudible)

Mr. 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.

Justice 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?

Mr. Benjamin C. Sigal: Well yes.

It is -- it's one their functions and what the -- and --

Justice Felix Frankfurter: That's a very different thing from the natural optimism of a businessman who (Voice Overlap) --

Mr. Benjamin C. Sigal: Well, it may be Your Honor.

It's a matter of judgement of course.

Justice 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.

Mr. 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.

Justice Felix Frankfurter: Well, did --

Mr. 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.

Chief Justice Earl Warren: And how does the -- how does the fact that the Commission has broad discretion, weaken the argument to the Solicitor General?

Mr. 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.

Chief Justice Earl Warren: Where do they say they don't -- there's no limit -- they can do anything they want?

Mr. Benjamin C. Sigal: Well that's our construction of what they -- what they have said.

Chief Justice Earl Warren: Will you take it something in their briefs or something that (Voice Overlap) --

Mr. Benjamin C. Sigal: What I have just read -- what I have just read from their briefs.

Chief Justice Earl Warren: Well, that's his broad discretion, that doesn't say --

Mr. Benjamin C. Sigal: Pardon?

Chief Justice Earl Warren: That's his broad discretion.

Mr. 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.

Chief Justice Earl Warren: 642?

Mr. Benjamin C. Sigal: Yes.

Chief Justice Earl Warren: Thank you.

Mr. 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.

Justice 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?

Mr. Benjamin C. Sigal: No.

Justice Felix Frankfurter: No matter what they say in their brief.

Mr. Benjamin C. Sigal: No.

Justice 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.

Mr. Benjamin C. Sigal: No, we don't do either.

Justice Felix Frankfurter: You don't do either.

Mr. Benjamin C. Sigal: No, we say that 104 is not the pertinent section.

That is our position.

Justice Felix Frankfurter: I -- I thought of that act.

I just want to know.

Mr. Benjamin C. Sigal: Yes.

Justice Felix Frankfurter: You don't -- this is not an unconstitutional delegation.

Mr. Benjamin C. Sigal: No, we're not claiming is unconstitutional.

Justice Felix Frankfurter: Or that the regulations which they formulated under their delegation are not ultravirus.

Mr. Benjamin C. Sigal: Not the -- not the regulation as written, but the regulation as applied.

Justice Felix Frankfurter: I'm talking about the regulation.

Mr. Benjamin C. Sigal: As written, no.

As written, we are not attacking the regulation in the briefs.

Justice Felix Frankfurter: What you're saying is them -- they misconstrue this -- they've -- they exercised power beyond the delegation that Congress gave them --

Mr. Benjamin C. Sigal: Yes.

Justice Felix Frankfurter: -- and they didn't apply their own regulation.

Mr. Benjamin C. Sigal: That's right.

Justice 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.

Mr. 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 --

Justice William J. Brennan: What -- 92 of what Mr. Sigel?

Mr. Benjamin C. Sigal: 185 of the respondents' brief.

Justice William J. Brennan: Of your brief?

Thank you.

Mr. 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 --

Justice Hugo L. Black: May I ask you in that connection if it wouldn't disturb you?

Mr. Benjamin C. Sigal: Alright.

Justice 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?

Mr. Benjamin C. Sigal: Well, if -- if by --

Justice Hugo L. Black: With reference to operation and their building?

Mr. 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.

Justice Hugo L. Black: Well, if -- supposed they just left out the part which seems to limit it to --

Mr. Benjamin C. Sigal: If they left --

Justice Hugo L. Black: -- by the provisional construction.

Mr. 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.

Justice 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.

Mr. Benjamin C. Sigal: That's right.

Justice Hugo L. Black: That's your argument?

Mr. 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.

Chief Justice Earl Warren: Well, were those requirements met here, do they do those things?

Mr. Benjamin C. Sigal: Oh yes, I will get -- they filled out the application, yes.

Chief Justice Earl Warren: Yes, but -- and they supplied that information.

Mr. 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.

Justice John M. Harlan: 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?

Mr. 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.

Justice Hugo L. Black: You mean safe --

Mr. Benjamin C. Sigal: Now --

Justice Hugo L. Black: -- you mean safe at that location?

Mr. 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?

Justice 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.

Chief Justice 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.

Mr. 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 --

Justice John M. Harlan: 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.

Mr. Benjamin C. Sigal: That's true.

That's true.

Justice John M. Harlan: 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.

Mr. 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.

Justice John M. Harlan: But that hazard will be present even under your construction of the Act.

Mr. Benjamin C. Sigal: I'm sorry.

Justice John M. Harlan: That hazard will be present under -- even under your construction.

Mr. 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.

Justice John M. Harlan: Well, you can't get rid of that hazard completely under any construction.

Mr. 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) --

Justice John M. Harlan: 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.

Mr. 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 --

Justice William J. Brennan: Is there any -- anything in the legislative history to show that Congress --

Mr. Benjamin C. Sigal: Yes.

Justice William J. Brennan: -- turning your mind to that particularly?

Mr. 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 --

Justice 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?

Mr. 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 --

Justice 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.

Mr. 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.

Justice 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?

Mr. 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.

Justice Felix Frankfurter: Not as to the form of the standard.

Justice William O. Douglas: Well, if your standard has been applied here, that no construction permit would've issued to date.

Mr. Benjamin C. Sigal: That's right.

There would have been no construction permit in this case.

Justice William O. Douglas: Until the research had been finished on the -- on the factor of safety.

Mr. Benjamin C. Sigal: That's right.

Now, there might have an issue the year later --

Justice William O. Douglas: Yes.

Mr. 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.

Justice 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.

Mr. Benjamin C. Sigal: Yes.

It's where is remanded the case to the Commission.

Justice Felix Frankfurter: For what?

Mr. Benjamin C. Sigal: Because it didn't make the next --

Justice Felix Frankfurter: For what?

Not -- not because of what, but for what?

Mr. Benjamin C. Sigal: To make the necessary safety findings.

Justice Felix Frankfurter: Well, they could do that within -- did it say, they must -- they mustn't take less a year in finding that?

Mr. Benjamin C. Sigal: Oh, no.

Justice Felix Frankfurter: They could -- found a necessary standard that -- your standard within a week, couldn't they?

Mr. Benjamin C. Sigal: Possibly.

And they possibly might have found that they didn't exist too, Your Honor and withdraw the permit entirely.

Justice Felix Frankfurter: But they also might have found what you are -- that your standard was satisfied pass a week's further investigation.

Mr. Benjamin C. Sigal: That's quite possible, but that still doesn't excuse the Commission.

Justice Felix Frankfurter: I'm not saying that -- I understand that.

I'm just trying to put to you what is involved.

Mr. 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.

Justice 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.

Mr. 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.

Justice Felix Frankfurter: I understand that.

Mr. 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.

Justice 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.

Mr. Benjamin C. Sigal: I'm sorry, I didn't understand you.

Justice 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.

Mr. Benjamin C. Sigal: I'm sorry, Your Honor.

This is --

Justice Felix Frankfurter: I know you don't agree.

I'm just -- I know you don't agree.

Mr. 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?

Justice John M. Harlan: 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?

Mr. Benjamin C. Sigal: Reimburse for what?

Justice John M. Harlan: Reimburse a project that in good faith has been undertaken and then had found to be unsafe.

Mr. Benjamin C. Sigal: I'm not aware of any such proposition.

Justice John M. Harlan: That would've been one surer way of alleviating those pressures, would it not?

Mr. Benjamin C. Sigal: That would have been one way, yes.

Justice William O. Douglas: Well, the -- the best (Voice Overlap)

Justice William O. Douglas: The way suggested I gathered was that by Senator Humphrey --

Mr. Benjamin C. Sigal: Yes.

Justice William O. Douglas: -- was not?

Mr. Benjamin C. Sigal: That's right.

That's --

Justice 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.

Mr. Benjamin C. Sigal: That's right.

Justice William O. Douglas: Is that right?

Mr. 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.

Justice John M. Harlan: But the finding in terms covers operation.

Finding 22 covers operation and at the proposed location.

Mr. Benjamin C. Sigal: For the purposes of a provisional construction permit.

Now, the question is this --

Justice John M. Harlan: You got to read out operation if you put your -- your construction in place.

Mr. 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.

Chief Justice Earl Warren: Mr. Moore -- Mr. Claytor, excuse me.

Argument of W. Graham Claytor, Jr.

Mr. 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 --

Justice William O. Douglas: What is the relevance here of that, Mr. Claytor?

Mr. 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.

Justice 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 --

Mr. W. Graham Claytor, Jr.: Well, that --

Justice 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.

Mr. 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.

Justice Tom C. Clark: Where do you say the PRDC functions were located?

Mr. 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.

Justice Tom C. Clark: (Inaudible) where this plant would be located?

Mr. 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.

Justice Hugo L. Black: What page is that?

Mr. W. Graham Claytor, Jr.: Page 53 of the Government's reply brief.

Justice Hugo L. Black: Thank you.

Mr. 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."

Justice Hugo L. Black: Where is this one to be located?

Mr. W. Graham Claytor, Jr.: This one is now in operation, Mr. Justice Black.

Justice Hugo L. Black: Where?

Mr. W. Graham Claytor, Jr.: In Massachusetts.

Justice Hugo L. Black: In Massachusetts.

Mr. W. Graham Claytor, Jr.: Rowe, Massachusetts, some 40 mile -- 40, 45 miles east of Albany, New York.

Now --

Justice Felix Frankfurter: Did I understand you to say that the -- the permit granted thus far have all been developmental reactor?

Mr. W. Graham Claytor, Jr.: For all power reactors, that's the large reactor.

Justice Felix Frankfurter: Yes.

Mr. 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.

Justice 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.

Mr. W. Graham Claytor, Jr.: With the step-by-step starter procedure?

Justice Felix Frankfurter: Yes.

Mr. 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.

Justice Felix Frankfurter: Affirm on each -- each of (Voice Overlap) --

Mr. W. Graham Claytor, Jr.: A separate permit.

Justice Felix Frankfurter: Limited, is it?

Mr. 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 --

Justice Felix Frankfurter: May I ask whether the statute authorizes or indicates submission for such a regulatory administrative procedure?

Mr. 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.

Chief Justice Earl Warren: Mr. Claytor, --

Mr. W. Graham Claytor, Jr.: Yes.

Chief Justice 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.

Mr. W. Graham Claytor, Jr.: Absolutely, sir.

Chief Justice Earl Warren: You could say?

Mr. 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.

Chief Justice Earl Warren: Thank you.