The Export reorganization act, 1975 : hearings before the Committee on Government Operations, United States Senate, Ninety-fourth Congress, first session, April 24, 30, and May 1, 1975 online

other nations across the globe.

Senator Glenn. Would the other environmental or national inter-
est groups in other countries — do you think that they would rather
see us retain strict safeguards in this country since we are the
world's major nuclear supplier or would they rather see us go to an
organization such as IAEA with more stringent international con-
trols and lessening our own controls over nuclear exports?

Mr. Knight. I cannot answer for them. I think that inherent in
any international agreement is, you know, the voluntary relinquish-
ment of certain rights. I think in most international agreements of
this type, there would be the voluntary acquiescence to certain safe-
guards. But the major burden for meeting those safeguards would
still be with the member state. I do not really think in current poli-
tical situations of the world that anything more would occur.

I think the idea of an international agency with real substantive
power is just not a possibility. It has not happened elsewhere. It
has not happened with the tanker standards. It has not happened
on something like regulating fisheries or the taking of whales. It is
still voluntary.

Senator Glenn. The Senator from Illinois.

Senator Percy. Thank you very much, Mr. Chairman.

First : I would like to report to you that all is well in Cincinnati,
Ohio, at least it was this morning when I left. I want to deliver you
a personal greeting from the "Women's Club of Ohio" of their
annual convention.



287

Mr. Greenberg, were you in the hearing room yesterday when
witnesses appeared ?

Mr. Greenberg. No ; I was not.

Senator Percy. Did you get a report on their testimony or did you
see some of the testimony ?

Mr. Greenberg. I saw some of it, but I did not have an opportu-
nity to get a full report on the testimony.

Senator Percy. Your own testimony this morning is refreshing in
several standpoints. First, I think it is very unusual — or it is an
extraordinarily good practice to have this summary at the beginning
of the testimony.

Mr. Greenberg. Thank you.

Senator Percy. It is very helpful to us — particularly this morn-
ing, when we all have other hearings and we have to bounce around.

Second, the discussion came up yesterday as to whether, in essence,
the pages of testimony we have from tHe Administration saying, in
summary, "everything is all right ; don't worry about it ; things are
very well; we have gotten things well in hand." But is this correct
in the world in which we live ?

Taking that as an accurate summation of some of the testimony
we heard yesterday, would you challenge that? Could you express
in your own words the depth of your concern about the present
situation ?

Mr. Greenberg. As I started my testimony this morning, all of the
groups which I represent are seriously concerned about the risks
which nuclear power poses. Those are not just safeguards risks.
They are risks associated with our lack of scientific knowledge as
to how manage wastes and lack of knowledge as to whether nuclear
power plants are truly safe. I think, moreover, that it is a fairly
accurate evaluation of world politics to state that there are many
countries which are unstable, which are subject to terrorist activity,
and in which nuclear facilities or trains or trucks carrying plutonium
or U-233 or highly enriched uranium pose very attractive targets
for terrorists.

We have not yet seen terrorist activity focusing on nuclear power
facilities or nuclear fuel. But I think that, if the nuclear industry
continues to grow without adequate safeguards, occurrences of that
sort are almost inevitable. Senator Ribicoff, in his opening statement
on the 15th of April, referred to the millions of pounds of plutonium
which are going to be loose in the world in the year 2000 if current
projections are correct. Plutonium, as this committee knows, is the
most toxic substance which we have in the world. A few grams of
that substance are sufficient to cause cancer in many hundreds of
thousands of individuals.

A plutonium dispersal device put into the air conditioning sj^stem
of a major building, such as the World Trade Center, by a terrorist
group would have unimaginable consequences. Moreover, as a number
of experts, including Theodore Taylor and Mason Willrich, have
stated — and I am not an expert on the possibility of building bombs
— it may be relatively easy for a terrorist group with a certain degree
of scientific competence to build a crude atomic weapon and detonate
it with effects which would obviously be horrifying.

So I think we are on the verge now of a world which holds great



288

dangers. Those risks which we foresee are going to grow unless
something is done now to bring them under control.

Senator Percy. I would like to ask you another question in gen-
eral terms, but I will precede it by stating that my State of Illinois
probably has more nuclear installations than any other State. They
are dependent on nuclear power now more than any other State. We
probably have amassed more research. The first chain reaction took
place on this stag field in the grandstand there and we have Argonne
and Arcadia.

We are in the nuclear age now. I have reported all of the research.
T have reported the expansion and cautiously and carefully have
chose some sites. I have always wanted to take environmental condi-
tions into account. I have benefitted tremendously by some of the
organizations that you have served and have help write legislative
history.

But I am convinced that nuclear energy is here to stay and that
we need it.

You represent 275,000 members. In some people's minds they rep-
resent sort of a radical element. They are just opposed to nuclear
energy in any and all forms. They are using every device they can
to throw road blocks in the way, to throw sand in the gears, to slow
the process up until we are going to have an acute energy crisis as
a result of all of this delay.

In view of that feeling by some people, I would like to give you,
as representative of these organizations, the opportunity to state in
the broadest possible terms as to whether or not you are here just
for more regulations or more tightening down in order to biock
progress to the area; or whether your position is one of caution, of
safeguard of prudence, but that you recognize we are in a nuclear
age and, if carried on in the right way, you are not an opponent as
such, nor are your organizations of nuclear energy.

I do not see in your statement your broadest possible position. I
would like to give you a chance to put on the record your attitude,
if you can express one, either for the organizations that you repre-
sent or your own opinion.

Mr. Greenberg. As far as the five organizations that I represent,
I am not authorized this morning to speak in such broad terms on
their behalf.

Senator Percy. Give us your personal opinion before I put speci-
fic questions to you on your testimony.

Mr. Greenberg. I do not know what my personal judgments are
worth. I am very concerned about the growth of nuclear energy. I
think that I would agree with you that it is unlikely that the nuclear
power industry is going to disappear. I think it is here. If it is here,
that means that we are going to have to take all such steps as are
necessary to begin to eliminate or reduce the risks, and the very real
risks, which are associated with it.

Senator Percy. You are not opposing any and all extension of
nuclear power in this country and abroad. Yon recognize realistic-
ally it is here to stay. But you are focusing your attention on the
safeguard aspect of it?

Mr. Greenberg. I am today, but I must

Senator Percy. I have a feeling that if you could do away with it
totally and completely you would like to.



289

Mr. Greenberg. I think, again, if we were talking about an ideal
world, it might not be a bad idea. The problem that I have with
nuclear power is that I am not satisfied in my own mind that the
risks which I perceive are acceptable risks. I think in a variety of
areas, such as waste management or safety, we do not have all of the
answers. In light of the fact that we do not have all of those answers,
T am concerned that we may be taking risks which will in the long
run, turn out to be unacceptable to society.

But I must repeat, I am not speaking for the five groups which I
represent in this regard. I think it is fair to say they have rather
different views with regard to nuclear power in this country. Some-
times it is stated that environmentalists represent a unitary position
aimed at blocking off further development. This is not the fact. The
environmental community is as complicated and differentiated as
any other segment of interest groups in our society. Among the five
groups which I represent, there may be widely different views with
regard to the advisability of proceeding with nuclear power develop-
ment. What I tried to do today is bring them together on this issue.

Senator Percy. Mr. Greenberg, I have just been notified that the
Foreign Relations Committee has now suspended testimony of wit-
nesses until I get there. The hearing is on a piece of legislation that
T am sponsoring.

I have asked all of the preliminary questions to the specific testi-
mony to get a basis of that testimony.

Senator Glenn, considering I represented you in Ohio, I wonder
if you would not mind asking these questions so that the record can
be clarified ?

Senator Glenn. All right.

Senator Percy. Thank you, Mr. Greenberg. I certainly do appre-
ciate you being here, and your judgment is extraordinarily helpful
to us. We have a very high regard for the organizations which you
represent.

Senator Glenn. I will proceed with the questions Senator Percy
has given to me.

On page 8 you stated the ERDA interim analysis dated April 7
reveals that at least some of the agencies involved in the export
process still hold a somewhat Pollyannish picture of the risk of world
growth and the peaceful nuclear power.

He says that he is interested in this because he has found some of
the agencies to be a bit like Pollyanna. What is this ERDA interim
analysis? What does it tell us about the shortcomings of our present
system ?

Mr. Greenberg. For better or for worse I struck the word Polly-
annish from my final written statement, which will be incorporated
in the record. However, the thought behind that statement still
remains.

The ERDA interim analysis is an analysis which has been pre-
pared as a result of a lawsuit which four of the groups which I rep-
resent brought in October 1973, to compel the Atomic Energy Com-
mission and other responsible agencies to prepare an environmental
impact statement on our nuclear power export programs. That im-
pact statement has not yet been released. But, as part of the overall
environmental review, ERDA undertook to analyze whether it would



290



be appropriate to continue with nuclear power export activities in
the interim.

The analysis which was released on April 7, and which is now open
for public comment, concludes that it is appropriate to proceed on a
business-as-usual basis with all of our nuclear power export activ-
ities and, indeed, does not differentiate between the risks which are
posed, for example, by the sale or transfer of enriched nuclear fuel
to Korea, as compared with the sale or transfer of enriched nuclear
fuel to Switzerland.

The entire analysis is pervaded with the belief that nuclear power
exports are substantially beneficial to this country and with very
little recognition of the broad range of risks which are associated
with such exports.

We are in the process of preparing detailed comments on this
analysis. I would like, with the permission of the committee, to ap-
pend those comments to my written statement when they are pre-
pared.

Senator Glenn. Fine.

[The information referred to and subsequently supplied follows:]



291



C i±lI\TJilR 1751 N SrRECT NW WASHINGTON OC 20036 202 8720670

FOR

LAW

AND

SOCIAL

POLICY



5 May 1975



Roger S Foster

Richard A Fi jrk.

Paul R Friedman

Paul G***iiu

FldonV C GreenDr-rq

Maroa D Greenberget

floben M H* ^.n

Benjamin W Hememan Jr

Leonard C Meeker

Joseph N Onek

MafdynG Rose

Loe J Schiller

Edward P Scott

Herbert Semmel



Mr. W. H. Pennington

Office of the Assistant Administrator

for Environment and Safety
United States Energy Research and

Development Administration
Washington, D.C. 20545

International Nuclear Power Program

Dear Mr. Pennington:

We are writing on behalf of the Sierra Club, the

Environmental Defense Fund ("EDF"), the National

Parks and Conservation Association ("NPCA"), the Natural

Resources Defense Council ("NRDC"), and Friends of the Earth

("FOE") to present their comments regarding the "Proposed
Findings Supporting Determination Related to International
Nuclear Power Export Activities Pending Preparation of a
Section 102 (2) (C) NEPA Environmental Statement" (the "Pro-
posed Findings"), released by the United States Energy Research
and Development Administration ("ERDA") on April 7, 1975

(40 Fed . Reg . 15438) . We have acted as counsel for all the
groups (except FOE) in the litigation which led to the decision
to prepare the environmental impact statement (the "Programmatic

Statement") on the international nuclear power program (the
"program") ( Sierra Club, et al . v. United States Atomic Energy
Commission, et al . , D.D.C., Civil Action No. 1867-73), and we
have, been asked by them to coordinate the presentation of
their comments.



292

The environmental groups are all non-profit membership
organizations deeply concerned and knowledgeable about the
environmental consequences of fission power. Their com-
bined membership exceeds 275,000 persons throughout the
United States and abroad. 1/ They have taken an active
role in the public debate surrounding the growth of com-
mercial nuclear power by means of litigation, testimony,
comments to regulatory bodies, and informational and educa-
tional programs designed to provide the public with data
relevant to environmental issues posed by fission power
development and to stimulate informed public discussion with
respect to such issues. And, in particular, they have been
concerned with the international environmental implications
of the spread of fission power as an energy source.



1 / The Sierra Club, whose principal place of business is at
220 Bush Street, San Francisco, CA 94104, has a membership
of approximately 150,000 persons, including persons residing
in 67 foreign countries. EDF, whose principal place of
business is 162 Old Town Road, East Setauket, NY 11733, has
a membership of approximately 57,000 persons and a 700-member
Scientists' Advisory Committee, including members residing
in 18 foreign countries. NPCA, whose principal office is
1701 18th Street, N.W. , Washington, DC 20009, has a membership
of approximately 45,000 persons, including members residing
in 36 foreign countries. NRDC, whose principal office is
at 15 West 44th Street, New York, NY 10035, and which has
additional offices in Washinqton, DC and Palo Alto, CA,
has a membership of approximately 20,000 persons, including
members residing in 8 foreign countries. FOE, whose principal
place of business is 529 Commercial Street, San Francisco,
CA 94111, has a membership of 20,000 persons and is affiliated
with "sister organizations" in 12 foreign countries.

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293



In the comments which we submitted to the Atomic Energy
Commission (the "AEC") last summer presenting suggestions
for consideration in connection with the preparation of the
Programmatic Statement 2/ , we stressed the importance of
ERDA's endeavor and the need for a comprehensive analysis
"treating all aspects of federal agency action to authorize,
assist, support, and encourage the export of fission power
generating systems and nuclear fuels." The Proposed Deter-
mination and Proposed Findings released on April 7 — the
first formal documents released as part of ERDA's overall
NEPA review — do not live up to this challenge. Indeed, as
set forth below, the Proposed Findings are fundamentally
inadequate in at least five basic categories of analysis:
they fail to deal with certain key aspects of program activi-
ties, including most importantly, the environmental impacts
of actions taking place abroad; they do not adequately assess
the risks associated with individual program activities; they
do not consider alternatives for the interim period short of
a total "moratorium"; they do not realistically examine the
ways in which program options may be foreclosed or irretrievable
commitments made by taking interim actions; and they do not
properly analyze the effect on the public interest of slowing



2 / Letter, dated August 15, 1974, from Eldon V. C. Greenberg
and Richard A. Frank to Dr. James L. Liverman, Assistant
General Manager for Biomedical and Environmental Research and
Safety Programs of the AEC.

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294



down, modifying, or deferring export activities, in
particular, the public benefits which might be achieved
thereby. In such circumstances, the Proposed Findings
cannot be relied upon as a basis for determining whether,
and, if so, how to continue with program activities during
the interim period. 3/



3 / Before proceeding to discuss the specific substantive
deficiencies in the Proposed Findings, a word should be
said about the date chosen for commencement of the interim
period itself. In our view, the proper operative date
for commencing the interim period is not July 1, 1974,
but rather March 15, 1974. It was on this latter date,
through letter of counsel, that the AEC declared its
intention to prepare the Programmatic Statement. Since
March 15 represents the date the AEC made public its
decision to subject program actions to environmental
review, logic and reason require that all subsequent
actions be regarded as interim in nature.

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295

I. The Scope of the Proposed Findings is Unduly
Narrow .

The Proposed Findings do not deal with a number of
critical aspects of United States nuclear export activities.
First, ERDA has defined the geographic scope of its analysis
so as not to deal with environmental impacts of activities
occurring in foreign countries. Second, although agencies
other than ERDA and the Nuclear Regulatory Commission ("NRC")
have an important role to play in the nuclear export process,
the Proposed Findings, for the most part, ignore their roles
and thus the range of actions and options under consideration
is not related to the full scope of the export process.
Third, certain classes of actions, such as the importation
of plutonium for fabrication in the United States, the
export of highly enriched uranium for use in research reactors,
and the approval of technology transfers, are not discussed
at all.

(a) Failure to Analyze Environmental Impacts of

Activities Occurring Outside the United States — Although

ERDA states that its Proposed Determination will be based,

inter alia , on the consideration whether "continuation

of international nuclear power export activities during

the prospective review period will give rise to a

significant adverse impact on the environment " (emphasis

added) , the conclusions it reaches are not based on

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296

an evaluation of impacts on "the environment" but on the
environment "in the United States and on the high seas" (2) 4/
And, even these impacts are only considered if they are re-
lated to "activities... conducted within the United States and
on the high seas" (2). Thus, not only has ERDA determined
not to evaluate impacts occurring in foreign countries, but
it has also determined not to examine impacts within the United
States which might be associated with activities conducted
abroad. 5/ Such an approach makes sense neither as a matter
of law or logic.



4 / Numbers in parentheses are page references to the
Proposed Findings.



5 / Ironically, ERDA is willing to consider certain non-
environmental impacts occurring in foreign jurisdiction when
it suits its purposes. Thus, for example, when ERDA discusses
the effect on the public interest of a "moratorium" on
nuclear power export activities (119-126) , it considers the
impact of a "moratorium" on an importing country's ability
to produce nuclear power (120-121) , and the cost to foreign
customers of substituting fossil fuel generating capacity
for inoperative nuclear generating capacity (122) . If these
economic interests of foreign countries may be taken into
account by ERDA, the environmental impacts of actions taking
place within such countries must also be considered.

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297

It is not our purpose in this letter to spell out in
detail the legal authority which compels the conclusion that
national Environmental Policy Act of 1969 ("NEPA") requires
federal agencies to consider all environmental impacts of
actions which they take in foreign countries. These arguments
are set forth fully in the plaintiffs' papers filed last
spring in Sierra Club, et al. v. United States Atomic Energy
Commission, et al . 6 / it must be emphasized, however, that
the position taken by ERDA with regard to the scope of NEPA
has been rejected by virtually every commentator who has
addressed the subject. See, e.g . , Legal Advisory Committee
Report to the President's Council on Environmental Quality
(December, 1971) ; Committee on Environmental Law of the
Section on International and Comparative Law of the American
Bar Association, Opinion on the International Scope of NEPA
(July, 1971) ; Strausberg, The National Environmental Policy
Act and the Agency for International Development , 7 Inter-
national Lawyer 46 (1972); Robinson, Extraterritorial Environ -
mental Protection Obligations of Foreign Affairs Agencies:
The Unfulfilled Mandate of NEPA , 7 International Law and
Politics 257 (1974) .



6 / See Memorandum of Points and Authorities in Opposition to
Defendant Export- Import Bank of the United States ' Motion for
Summary Judgment and In Support of Plaintiffs' Cross-Motion for
Summary Judgment, pp. 30-51, dated April 24, 1974, and the
Reply Memorandum of Points and Authorities in Support of Plaintiffs'
Cross-Motion for Summary Judgment, pp. 14-19, dated June 3, 1974,
in Sierra Club, et al . v. United States Atomic Energy Commission ,
et al . , Civil Action No. 1867-73 (D.D.C.).

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298



Significantly, moreover, the House Committee on
Merchant Marine and Fisheries, after carefully considering
the proposition that activities conducted in foreign juris-
dictions are not covered by NEPA, specifically stated in its
Report on NEPA oversight hearings held in 1970:

"The Department of State, in consulta-
tion with CEQ, should reconsider its
position that AID supported projects
need not be accompanied by '102' state-
ments. Such a position is contrary both
to the language of and to the intent of
NEPA."

"Administration of the National Environmental
Policy Act," H.R. Rep. No. 92-316, Report
by the House Committee on Merchant Marine
and Fisheries, 92d Cong., 1st Sess. 6
(1971) .

Commenting further on the view that Section 102 does not re-
quire preparation of environmental impact statements with
regard to foreign programs, the Committee concluded:

"Stated most charitably, the Committee
disagrees with this interpretation of
NEPA. The history of the Act makes it
quite clear that the global effects of
environmental decisions are inevitably
a part of the decision-making process and
must be considered in that context . " Id .
at 33 (Emphasis in original) .

Finally, and perhaps most importantly as far as ERDA's re-
sponsibilities are concerned, the Council on Environmental
Quality (the "CEQ") has called upon agencies to consider the
impacts of their actions in "both the national and international
environment." 40 C.F.R. §1500 . 8 (a) (iii) (A) . J_/ Such views
must be given great weight by the agency. Warm Springs Dam
Task Force v. Gribble, 94 S.Ct. 2542 (1974).



7 / â–  The CEQ has, in particular cases, urged the preparation of
impact statements on agency actions taking place outside the U.S.
See, e.g . , letter, dated February 6, 1973, from Russell E. Train,
Chairman of CEQ, to Dr. John A. Hannah, Administrator of the Agency
of International Development, attached As Exhibit A to the Complaint
in Environmental Defense Fund, Inc., et al . v. United States
Agency for International Development, et al . , D.D.C., Civil Action
No. 75-0500 (filed April 8, 1975).

" -8- ' -



299

The failure to consider the environmental impacts of