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

actions occurring in foreign jurisdictions results in a hope-
lessly limited analysis. While impacts of actions occurring
in the United States, such as those associated with the
enrichment of fuel for foreign use or the potential repro-
cessing and waste storage of spent foreign fuel, are important,
nonetheless they are only part of the overall fuel cycle, and,
in examining the environmental impact of program activities,
they cannot be isolated from impacts associated with other
steps in the fuel cycle, which may occur abroad. 8/ "NEPA man-
dates a rather finely tuned and 'systematic' balancing analysis..
Calvert Cliffs' Coordinating Comm. , Inc . v. Atomic Energy
Commission , 449 F.2d 1109, 1114 (D.C. Cir. 1971), and "all
known possible environmental consequences of proposed agency
action", Environmental Defense Fund v. Corps of Engineers , 325
F. Supp. 749, 759 (E.D. Ark. 1971), must be fully assessed if
this balancing process is to be rationally carried out. The
approach taken by ERDA makes it impossible to do so, and in-
deed, amounts to a bald assertion that it is wholly irrelevant
to the U.S. decisionmakers (and other affected persons) whether
the construction and operation of U.S. supplied nuclear power
generating systems and the use, transport and management of
nuclear fuels and associated radioactive wastes, result in
catastrophic environmental consequences, so long as such activi-
ties take place abroad. This amounts to nothing less than an



8 / See generally our letter of August 15, 1974 to Dr. Liverman,
Note 2, supra , concerning the impacts of export activities outside
the United States which should be considered in any NEPA analysis
of the program. _â–¡_



55-43(1 n - 75 - 2(1



300

abdication of environmental responsibility under NEPA. 9/

Even assuming arguendo that NEPA's scope does not
extend to impacts of federal agency actions when such impacts
occur in a foreign jurisdiction, it must necessarily cover
impacts associated with such actions, even actions conducted
abroad, which occur on the high seas or in the United States.
There is no justification for ERDA's failure to consider in
the Proposed Findings potential direct effects on U.S. citizens
persons who clearly fall within the scope of NEPA's protection.



9 / It should be pointed out that a corollary of ERDA's refusal
to consider only impacts of activities conducted within the
U.S. or on the high seas is its apparent decision to consider
in the Programmatic Statement only "alternatives within the
domestic nuclear fuel cycle" (110). In other words, the full
range of alternatives which could affect program activities,
including alternatives available to U.S. agencies, foreign
governments, and intergovernmental bodies, — a range of
alternatives required to be considered under NEPA, see Natural
Resources Defense Council, Inc . v. Morton , 458 F. 2d 827
(D.C. Cir. 1972) — will be unjustifiably ignored.

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For example, might not the meltdown of the reactor core
of the Laguna Verde-2 generating system, to be located in
Vera Cruz, Mexico (presumably on the Gulf of Mexico) (37),
with a major release of radioactive gases and liquids into
the environment, have an impact beyond the territorial
jurisdiction of the government of Mexico or ultimately on
the United States? Similarly, if low-level or high-level
wastes resulting from the use of enriched nuclear fuel
shipped to Japan (40-42) are dumped by the Japanese in the
ocean, might there not be impacts on the high seas of such
actions, even ultimately affecting the United States? 10/
These and other similar questions must be answered if the
Proposed Findings are to provide a complete and accurate
picture of the risks posed by interim program activities.



1q / In addition to impacts associated with individual actions,
aggregate impacts should also be assessed on a worldwide basis —
as they are for activities taking place within the United States
(43-90) — in order that global risks of interim actions (and
thus necessarily risks to the U.S. environment) are fully pre-
sented in the Proposed Findings.

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(b) Failure to Consider Actions of Other Responsible
Agencies - In acting as the lead agency in preparation of
the Programmatic Statement, it is ERDA's responsibility, as
Judge Gasch emphasized in his opinion of August 2, 1974,
in Sierra Club, et al . v. United States Atomic Energy Com-
mission, et al . , 6 E.R.C. 1890 (D.D.C., August 2, 1974), to
insure that relevant actions of all federal agencies involved
in the export process are appropriately evaluated and con-
sidered under NEPA. ERDA, however, has failed to shoulder
this responsibility.

The most egregious omission from the Proposed Findings
is any discussion of the role of the Export-Import Bank of
the United States ("Eximbank") in the nuclear export process.
From a reading of the Proposed Findings, one would have no
idea that financing by a U.S. agency had anything to do
with the export of nuclear equipment, technology and fuels.
Yet, as we have stressed on numerous occasions,

financing of nuclear power exports by Eximbank plays an im-
portant role in the program. Indeed, in many cases, exports
depend upon availability of financing from Eximbank. As of
December 31, 1973, Eximbank financing had been or was being
provided for 70% of all U.S. -built nuclear power plants exported
or expected to be exported at such date, while Eximbank

financing had been provided for more than 35% Of the AEC's

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fuel enrichment service contracts. 11/ And proposed Eximbank
financing commitments in the interim period have generated
substantial public controversy. 12/ Obviously, financial
commitments involving interim actions and their effects on
the overall NEPA process must be reflected in the Proposed
Findings.

Agencies other than Eximbank also have a role to play
in the overall export process, but the nature and scope of
their actions during the interim period are basically ignored
in the Proposed Findings. For example, although the

Proposed Findings state that the Department of Commerce is
responsible for issuing export clearances for equipment and
facilities which "do not constitute a reactor or a major com-
ponent thereof" (34) , there is no further reference in the
Proposed Findings to the Department of Commerce's role in the
nuclear export process. In introducing a bill to restructure



1] / See Eximbank' s and the AEC's Answers to Interroga-
tories, dated February 15, 1974, in Sierra Club, et al . v.
United States Atomic Energy Commission, et al . (D.D.C., Civil
Action No. 1867-73) .

12 / See, e.g . , Statements of Senator Stevenson (D-Ill.) con-
cerning a proposed loan for the export of a 600 MWe nuclar power
generating system to South Korea. 121 Cong . Rec . S.3364

(daily ed. , March 7, 19 75); 121 Cong . Rec . S.3598 (daily ed. ,
March 11, 1975) .

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the U.S. export licensing process (S. 1439), Senator Ribicoff

(D.-Conn.) recently stated:

"[N]uclear components now comprise the
major share of our nuclear exports, re-
flecting a shift away from the sale of
complete reactors and toward the sale of
technology, such as blueprints, and the
complex subassemblies that other nations
cannot produce themselves." 13 /

In light of the apparent importance of the Department of
Commerce's role, clearly the Proposed Findings should address
such questions as: What procedural and substantive require-
ments are followed by the Department of Commerce in evaluating
clearance applications? How many applications for clearance
does the Department of Commerce receive each year? What is
the nature of the equipment and facilities which it issues
clearances for? Could the export of any such items have a
significant environmental impact or foreclose later options?

(c) Failure to Discuss Significant Classes of
Actions - The Proposed Findings fail to discuss certain
classes of actions which have been or may be undertaken in the
interim period which may have a significant environmental
impact. These include the issuance of licenses for the im-
portation into the United States of special nuclear material,
particularly plutonium, and radioactive wastes; the issuance
of licenses for the export from this country of special
nuclear material for use in research programs; and the



137 121 Cong . Rec. S.9961 (daily ed. , April 15, 1975).

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authorization of the transfer of U.S. technology. 14/

Although the Proposed Findings state that "no U.S. nor
foreign reprocessing capability is expected to be available
until at least 1976" and that "consequently, neither repro-
cessing in the United States of nuclear power reactor fuels
from abroad nor related waste disposal activities are con-
sidered in this interim analysis" (8) , this statement might
be taken to imply that fuel reprocessed abroad has not been
or will not be shipped to the United States. 15 / However, in the
past, at least, commercial reprocessing facilities have been
operational in several locations abroad, including Mol in
Belgium, and Windscale in Great Britain. And, during the
interim period, plutonium, recovered from the Trino reactor
in Italy and reprocessed by Eurochemic in Mol, Belgium, has



147 It should also be mentioned that certain types of actions
referred to in the Proposed Findings, such as the U.S. German-
Offset Agreement of 1975 (50, 116) and the export of highly en-
riched uranium for use in high temperature gas-cooled reactors
(93-95, 107) , are not explained in sufficient detail so as to
allow the reader to understand their relationship to other pro-
gram activities. For example, how and why were the agreements
providing for transactions negotiated, and are they precedents
for other, future agreements of the same type?

15 / This statement also implies that no commitments are being
made now with respect to future reprocessing and waste disposal
activities in the United States. The Proposed Findings should
expressly indicate whether such commitments have been or may be
made; if they have, their nature and implications should be de-
scribed; and, if they have not, any other plans which exist for
reprocessing and waste disposal should be discussed.

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been shipped to the United States for fabrication by Westing-
house Electric Corporation in Cheswick, Pennsylvania. 16/
Such shipments have generated substantial public controversy. 17/
Clearly, then, if not dealt with in a separate environmental
impact statement 18/, reprocessing abroad, with subsequent
importation of plutonium into the United States for fabrica-
tion - a step in the fuel cycle which involves direct and
immediate risk of environmental injury to the United States —
is something that must be considered both in the Proposed
Findings and in the Programmatic Statement.

The Proposed Findings further specifically state that
they do not include exports for "nuclear energy research and
development" (2) . As has recently been made public, the United
States has, during the interim period, shipped strategically
significant quantities of highly enriched uranium to South
Africa for use in its research reactor program 19/, and such



16 / See United States Atomic Energy Commission Docket No.
70-168, Concerning License No. SNM-1468. The footnote at page 3
of the Proposed Findings dismissing such import licenses as
not "part of the ongoing nuclear power export program" is totally
beside the point. Individual import licenses may pose a direct
risk to the United States environment, and, once a license is
issued, the action becomes, for all intents and purposes, ir-
reversible. It is thus essential to determine in advance whether
the action should be permitted at all pending completion of a full
environmental analysis. It may be that a separate impact statement
is the best vehicle to address this problem, see letter dated April 3,
1975, from Lee V. Gossick, Executive Director for Operations of
NRC, to Mr. George F. Murphy, Executive Director of the Joint
Committee on Atomic Energy, but if that is the case, it should be
explicitly stated in the Proposed Findings.

_17/ See, e_;_g. , the New York Times , March'29, 1975, at 22,
col. 1 (editorial) .

JJ*/ See Note 16, supra .

}}/ See the Washington_Post, April 14, 1975, at Al, col. 4.

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shipments have been a cause of public concern. 20 /
Because of the significant risks which may be involved in
such exports, at the very least, if a decision is made

that the Programmatic Statement is not an appropriate vehicle
to deal with the research export problem, then a concommitant
decision must be made (and appropriately noted in ERDA's
ultimate findings) to prepare an environmental impact statement
covering such problem.

Finally, the Proposed Findings in no way deal with or
even mention actions of ERDA or other agencies relating to
the export of technology by U.S. corporations ( e.g . , licensing
of patents, know-how, etc.). 21/ Technology transfers have
permitted the development abroad of large scale nuclear power
industries, in countries such as France 22/, and recently
proposals have been made in Congress to strengthen controls
over such transfers. 23 / Because of the importance of
technology transfers as a basis for expanding civilian nuclear
power programs, it seems essential to analyze this aspect of
the program in the Proposed Findings.



20/ See, e.g ., Hearings before the Senate Government Operations
Committee on the Export Reorganization Act of 1975, S.1439 ,
94th Cong., 1st Sess. (April 24, 1975)

TL/ See generally 10 C.F.R, Part 110 (Supp. 1974).

22 / See "Exports of Nuclear Materials and Technology",
Hearings before the Subcommittee on International Finance
of the Senate Committee on Banking, Housing and Urban Affairs ,
93d Cong., 2d Sess. 10-11, 28-31 (1974).

2 3 / See Hearings b efo re th e Sen ate Commi ttee on Gover nment
Operations on the Export Reorganization Act o f ~1 . 3 75~7~S~ T 1 4 39 ,
94th Cong., 1st Sess. (April 24, 30, May 1, 1975r!

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II. The Proposed Findings Do Not Adequately Assess
the Risks Associated with Individual Program Activities

In a letter to us, dated November 11, 1974, Marcus
Rowden, General Counsel of the AEC, stated that the Proposed
Findings would "involve an assessment of each individual
action" in the context of the four issues dealt with therein. 24 /
The Proposed Findings do not fulfill this commitment. Although
they contain certain data concerning nuclear power development
plans in particular countries and United States agreements with
or commitments to such countries, they contain no analysis of
the particular risks, on a project by project or even country
by country basis, associated with nuclear power development
activities taking place abroad. To some extent, of course, the
lack of such analysis is a function of ERDA's decision not to
deal at all with activities in foreign countries. See Point 1(a),
supra . But even as far as individual program activities in
the United States are concerned, the analysis is presented in
such a way that it is impossible for the reader to understand
the environmental implications of such activities, for virtually
no attention is given to the harm they cause, their absolute



247 Exhibit C to the Affidavit of Eldon V. C. Greenberg, sworn
to March 21, 1975, in Sierra Club, et al . v. United States Atomic
Energy Commission, et al.



309

as opposed to comparative effects, or the specific geographic
locations in which their impacts might occur. 2 5/ Such an
approach is inconsistent with the mandate of NEPA, and, indeed,
even with the approach taken by the AEC in previous interim
analyses, such as that of the Liquid Metal Fast Breeder Reactor



257 In order to assess properly the risks of potential adverse
Impacts occurring, it should also be emphasized that the Proposed
Findings must address, to a greater extent than they now do, the
adequacy of current policies, practices and procedures for elimina-
ting or reducing such risks. For example, in light of the fact
that the United States has "recently instituted. . . [a] policy re-
quiring that exports of highly enriched uranium be authorized only
after the government of the recipient country has established
physical security measures acceptable to the U.S. to prevent theft
of the material or sabotage of related facilities by sub-national
groups" (94), the question arises as to whether current policy,
which does not require that any physical security standards be met
governing plutonium recovered from spent fuel elements utilized
in exported nuclear power generating systems, is adequate to protect
against diversion, sabotage or theft at that stage of the fuel
cycle. Indeed, does even a standard which calls for "acceptable"
physical security measures insure that such measures will be
"adequate" to prevent the theft or sabotage of special nuclear
material by sub-national groups. Similarly, in light of the fact
that "the U.S. material control and accounting system has been
strengthened" in the past two years (100) , what are the implica-
tions of this fact as it bears on the adequacy of the current
international system, and are such implications consistent with
ERDA's conclusion that "the IAEA safeguards system effectively
meets the objective to detect and to deter national diversion
of materials exported during the interim period" (104)?
The issues of safeguarding special nuclear material are,
along with other issues relating to the safety of nuclear power
development, being increasingly intensely debated. See, e.g . ,
Hearings before the Senate Government Operations Committee
on the Export Reorganization Act of 1975, S.143 9, 94th Cong. ,
1st Sess. (April 24, 30, May 1, 1975). A much harder and more
realistic assessment of the adequacy of current safeguards, as
well as other current regulations, practices and policies, must be
provided in the Proposed Findings if they are to provide the
decisionmakers and the interested public a complete and accurate
picture of the risks posed by continuing, without alteration,
nuclear export activities during the interim period.

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Program. 26 /

(a) Impacts of Activities Occurring Outside the United
States — Individualized examination of particular projects
is the only way in which the required NEPA balancing deter-
mination 27/ can be adequately carried out. And, especially
in dealing with the export of nuclear equipment, technology
and fuels to a wide variety of countries, in which there
are obviously very different conditions present, to make
no individualized analysis of risks makes very little sense.
Yet, in the Proposed Findings' discussion of safeguards (91-107)
the one place in such document where there is at least an indica-
tion that risks related to activities conducted abroad may have
some relevance to decisionmakers — solely a generic analysis
is provided.

With regard to safeguards issues, the Proposed Findings
appear to recognize, at various points, that safeguards risks
may vary from country to country. Thus, it is indicated that
adherence to the Treaty on the Non-Prolif eration of Nuclear
Weapons (the "NPT") 2 8/ may be a factor taken into account in
determining whether to execute and how to administer Agreements



26 / See "Findings Supporting Determination in Regard to LMFBR
Program Pending Preparation of a Section 102(2) (C) NEPA Impact
Statement" (1974) , in which the bulk of the analysis is devoted
to discussing impacts of program activities at specific sites.

2 7 / See page 9, supra .

28 / Done at Washington, London and Moscow July 1, 1968;
entered into force for the United States March 5, 1970,
21 U.S.T. 483, T.I.A.S. No. 6839.

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for Cooperation (16, 29). 29/ Likewise, in discussing pro-
posed Agreements for Cooperation with Egypt and Israel, the
Proposed Findings note that "unique political and historical
relationships", at least, may call for a modification of standard
practices (28-29). And, in terms of safeguards risks, it is obviously
not at all the same thing to permit the export of enriched
nuclear fuels to South Korea, for example, a developing country
engaged in a political struggle with Communist North Korea,
and to permit exports to a stable, developed Western European
country such as Switzerland. 30 / It seems clear, therefore, that it
is encumbent upon ERDA to analyze specifically where and how
exported nuclear fuels will be used in particular countries and
what will be done with the fuels once spent, as well as the
political climate in such countries as it bears upon the risk
of diversion and/or theft or sabotage, if its assessment of safe-
guards risks is to contain something more than relatively useless
generalizations. 31 /



29/ It should be noted, In this regard, that many commentators
have suggested that the United States should not permit the
export of fission technology and fuels to nations which are not
parties to the NPT. See, e.g . , testimony of Herbert Scoville
before the Subcommittees on International Organizations and
Movements and on the Near East and South Asia of the House Com-
mittee on Foreign Affairs, 93d Cong., 2d Sess. (June 25, 1974).

30 / Indeed, the pending nuclear fuel export license to South
Korea (42) has evoked substantial public concern. See, e.g . ,
the Washington Post , April 18, 1975, at 2, col. 4

31 / Certainly, to the extent that individualized risks in
foreign countries are analyzed, as they must be, see Part 1(a),
supra , risks other than safeguards associated with the particular
projects, e.g., the major accident risk in a given location or the
radiation risks to be public given the population density of
an area proximate to a reactor site, must be dealt with as well.
ERDA, NRC and other responsible agencies must have before them
adequate data to ensure that commitments are not made without
full understanding of the environmental risks involved.

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(b) Impacts of Activities Occurring Within the United
States — The failure of ERDA to conduct a meaningful analysis
of environmental impacts continues in the Proposed Findings'
assessment of activities occurring within the United States (4 3-
90) . This entire discussion is little more than a mathematical
extrapolation from aggregate analyses set out in the AEC's
"Environmental Survey of the Nuclear Fuel Cycle," WASH-1248,
issued in 1972, and attached as Appendix D to the Proposed
Findings. ERDA's approach makes it effectively impossible
for decisionmakers and the public to understand the impact
of program activities for several reasons:

First , merely providing aggregate figures with respect
to the amount of effluents attributable to all nuclear export
activities ( e.g . , 74-82) or the percentage of effluents at-
tributable to individual contracts (83-90) does not really help
the reader understand what the environmental impact of such
activities is. In order to do this, the effects of such effluents
must be analyzed, as well as the cost which they inflict upon society.
It is not meaningful, for example, merely to state that export
activities will require 385 billion gallons of water in the
interim period (54) . That is merely the first step in the
analysis. The next question is: What kind of impact does the
use of this water have on the environment, and what costs are
associated with its use? Answers to these questions are no-
where found in the Proposed Findings.

Second , the analysis provided by ERDA seems to be often
used as a springboard for a comparison of incremental impacts

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of program activities with either total effluents from all
domestic nuclear power activities or total effluents from
other industries, which accomplishes the end result of
trivializing program activities. For example, the Proposed
Findings note the "trivial nature" of nonradiological gaseous
effluents from export activities (59) , the "minor portion"
of the total releases of liquid effluents from export activities
(62), the "insignificant" probability of a serious accident
resulting in an accidental criticality event during transport
of enriched uranium materials (70) , etc. While such comparisons
are instructive to some degree, not only do they not serve
to demonstrate the "trivial nature" of impacts directly re-
lated to export activities, but they cannot serve as a basis
for decisionmaking under NEPA. The question is not what the
comparative impact of export activity is, but rather what the
absolute impact is, partiuclarly in the specific locations