Power Reactor Co. v. Electricians

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.