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

NRC to delay imports and exports of enriched uranium pending review
of U.S. policies in this area. See the New York Times, April 15, 1975,
at 7, col. 1; the New York Times, April 23, 1975, at 5, col. 1.



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following two suggestions as far as Agreements for Cooperation are
concerned:

(1) At a minimum, criteria established by NRC for use in the
development of Agreements for Cooperation [Section 7(b)] must actually
be met before such Agreements can be concluded. To merely provide
for the "use" of such criteria is not enough; they must be control-
ling. 31/

(2) A nuclear proliferation assessment statement [Section
8(a)] should be prepared in connection with the negotiation and
conclusion of an Agreement for Cooperation. Since, in most in-
stances, this is the first step in a country's effort to develop a
nuclear economy, it seems essential that before the United States
commits itself to assist in such a step, it assures itself as to
the proliferation risks involved.

(c) Review Criteria Should be Expanded - There is no question
that any safeguards review by NRC should include both materials ac-
countability and physical security [Section 3(6)]. However, di-
version of materials by a foreign national government in order to
fabricate a nuclear weapon is a problem peculiar to non-weapons
states, and in a sense, it is a problem not precisely addressed by
the U.S. safeguards system. Thus, it is not quite clear from the
context of the Bill what "safeguards substantially at least com-
parable to safeguards required by the Commission in the United
States" [Section 7(a)] means. In order to make a meaningful judgment



31/ An alternative might be to write no safeguards provisions at
all into an Agreement for Cooperation but to have a specific pro-
vision in such Agreement making the issuance of licenses thereunder
subject to safeguards requirements established by NRC.



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as to the appropriateness of specific safeguards measures in
specific countries, the regulatory and political climate of such
countries must be analyzed in detail. Safeguards which are
"comparable" to U.S. safeguards in one country may be sufficient
to prevent diversion, but in another country they may not.
Consequently, we would suggest that, in addition to a requirement
that safeguards be at least equivalent or comparable, there be a
second criterion: that the safeguards be "adequate to protect
against the risk of diversion, sabotage or theft in the recipient
country." 32/ Further, it should be explicitly stated that NRC is
required, prior to issuance of an export license, to determine that
adequate measures have been or will be taken to protect against harm
to the health and safety of the public and to the environment.

(d) Consideration Should be Given to Relating United States
Safeguards Requirements to International Safeguards Requirements -
The Bill as drafted represents essentially an unilateral approach
to the safeguards problem. It will thus undoubtedly be criticized
on the grounds that it represents a form of "nuclear imperialism"
and that generally agreed upon international safeguards criteria
are much more palatable to foreign countries than are criteria uni-
laterally required by the United States. Moreover, the argument will
be made that, in the long run, as more and more countries become



32/ in this regard, it should be noted that ERDA has recently moved
Tn the direction of establishing physical security requirements over
exports at least of strategic quantities of uranium enriched to greater
than 20% in the isotope U-235, plutonium, an d U-233. ERDA Interim
Analysis 106. Such policy does not extend, however, to low enriched
uranium or to the reprocessing and fabrication of spent reactor fuel.
Moreover, the policy only requires that recipient countries establish
"a system of physical security measures acceptable to the United States",
ERDA Interim Analysis 106 (emphasis added) , and thus there is no
assurance that such system of physical security actually be adequate to
prevent the theft or sabotage of special nuclear material by sub-national
groups. Finally, no physical security measures are required to protect
against diversion by the recipient country itself. I



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capable of supplying nuclear power generating systems and nuclear
fuels, an international safeguards system which is truly universal
will best protect against diversion risks. Because there are
benefits in having an adequate international regime for regulation
of the nuclear fuel cycle, the environmental groups would suggest
that the Committee give some consideration to development of a
scheme which would relate standards developed within the United
States to standards which might subsequently be developed inter-
nationally. 3_3/ Under such a scheme, NRC would still be required
to promulgate and impose its own safeguards standards. If, there-
after, a multilateral agreement could be worked out, containing
"substantially equivalent" standards, then, in any particular case,
the U.S. unilateral safeguards could be replaced by those agreed
upon multilaterally , provided that the adoption of the multilateral
accord would not impair the United States' right to impose more
stringent standards on a recipient country. Hopefully, the United
States' move to act unilaterally in the absence of international
agreement would stimulate the international community itself to
establish an appropriate safeguards scheme. This approach would be
consistent with the objectives of the Bill "that commercial nuclear
exports by the United States should be made in the context of mean-
ingful international controls" [Section 2(a) (8)].



33 / A precedent for such an approach may be found in the Ports and
Waterways Safety Act of 1972, Pub. L. No. 92-340, 86 Stat. 427, 46
U.S.C. §391a (July 10, 1972), governing the regulation of oil tankers.
That Act, however, is deficient insofar as it does not, over a long
interim period, require the U.S. standards to be put into force in the
absence of an international agreement. Further, its language may
not be strong enough to ensure that the United States will put such
standards into force if international regulations are inadequate.
These deficiencies, of course, would have to be remedied in any
legislation governing the nuclear export process.



364



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(e) Provision Should be Made for Appropriate Public
Participation in the Export Licensing Process — As noted above,
one problem with the nuclear export licensing process in the past
has been that interested persons, with the exception of the
license applicant, have not been notified as to the pendency of
license proceedings, and, because of the ministerial nature of
the review, they have had no opportunity to appear and present
views with regard to prospective licenses. S.14 39 does not alter
this pattern of exclusion of public participation in the export
licensing process, and, indeed, may aggravate this particular
procedural infirmity to the extent that it may make the Secretary
of Commerce ' s licensing function ministerial, subject to receipt
of certification by other agencies, which, themselves, do not get
input from the public in making their determinations. We suggest
that public procedures are important and should be provided for
in the following proceedings:

(1) In the licensing proceedings under Sections 53(a), 62,
82(c), 103 and 104 of the Atomic Energy Act, the Bill should make
clear that licenses will only be issued after full administrative
review, including public notice of and public hearings, on individual
license applications.

(2) In the establishment by NRC of safeguards criteria [Section
7(b)], provision should be made to ensure that such criteria are
developed in an open decisionmaking process after substantial public
debate, i.e., developed in the context of a formal rulemaking pro-
ceeding.



365



â– 24-



(3) In the development and consideration of the nuclear
proliferation assessment statement [Section 8(a)] such statement,
to the extent feasible, should be circulated to the public for
comment.

(f ) The Role of the Arms Control and Disarmament Agency in
the Export Process Should be Expanded - The Arms Control and
Disarmament Agency ("ACDA") is presumably the agency within the
federal government with the most expertise concerning the political
risks of nuclear proliferation. By contrast, NRC's primary
expertise relates to the physical aspects of the proliferation
problem, i.e., how to account for nuclear materials or provide for
physical security. It thus makes sense in Section 8 of the
Bill to expand the role of ACDA and give it greater responsibility
in decisions to enter into Agreements for Cooperation or issue
export licenses. As currently drafted, it is not clear just how the
nuclear proliferation assessment statement will be used in the
licensing process, and merely offering ACDA the opportunity to
comment on proposed licenses [Section 8(b) J does not ensure that
ACDA will in fact participate in the licensing process. Thus, we
suggest that it might be more appropriate to have ACDA itself prepare
the nuclear proliferation assessment statement and to require that
that statement be given consideration, together with economic,
technical and other factors, in the licensing process. 34/ Such an
appropach would ensure that ACDA's evaluation of a proposed project
is before NRC (or other responsible agencies) before decisions are
made to authorize nuclear exports.



34/ To avoid any contrary implications as, for example, with regard
to the application of the requirements of the National Environmental
Policy Act of 1969, it should be made clear that preparation and
consideration of the nuclear proliferation assessment statement is
"in addition to all other evaluations, assessments and reviews re-
quired by law. "



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(g) The Training Program Established by NRC Should Include
Health, Safety and Environmental Controls — The training program
provided for in Section 7(c)(1) of the Bill provides for training
in "the most advanced techniques and technology for materials
accounting and physical security". Speaking on behalf of environ-
mental groups, I would also urge that consideration be given to
establishing and operating a training program in the area of health,
safety and environmental control. The regulatory problems associated
with fission power development are not just those of safeguards.
The competency of local regulatory authorities, especially in
developing countries without previous experience in the fission
power area, is essential to ensuring that nuclear power generating
systems are constructed and operated and nuclear fuels and associated
radioactive wastes are used, transported and managed in such a
manner so as to eliminate or reduce environmental risks. A
training program in the United States would be of great importance
in achieving this goal.

(h) Safeguards Studies Under the Bill Should be Coordinated
with Other Federal Studies — The study provided for in Section
9(a) (1) of the Bill appears to overlap to some extent with the study man-
dated last October by the Export Administration Act Amendments of
1974. 35/ The Export Administration Act study is due to be



357 Section 14 of the Export Administration Act Amendments of 1974,
Pub. L. No. 93-500, 88 Stat. 1552 (Ocober 29, 1974), calls upon the
President



[footnote continued on page 26.]



367



â– 26-



released shortly, and, in order to avoid any redundancy of effort,
it might make sense to limit the NRC study under Section 9(a) (1)
of the Bill to issues not covered by the Export Administration Act
study or to follow up questions raised as a result of such study. 36/

IV. Conclusion

In conclusion, we believe that Congress is moving in the
right direction with legislation such as S.1439. It is critically
important that Congress follow up on the wise choices made in the
Energy Reorganization Act of 1974 to separate promotional and
regulatory functions in the area of nuclear exports and to vest
control over safeguards and other regulatory considerations in an



35/ continued from page 25 .

"to reviev; all laws, regulations issued thereunder
by the Atomic Energy Commission, the Department of
Commerce, and other Government agencies, governing
the export and re-export of materials, supplies,
articles, technical data or other information relating
to the design, fabrication, development, supply,
repair or replacement of any nuclear facility or any
part thereof, and to report within six months to .
the Congress on the adequacy of such regulations
to prevent the proliferation of nuclear capability
for nonpeaceful purposes. The President is also
directed to review domestic and international nuclear
safeguards and to report within six months to the
Congress on the adequacy of such safeguards to prevent
proliferation, diversion or theft of all such nuclear
materials and on efforts by the United States
and other countries to strengthen international
nuclear safeguards in anticipation of the Review
Conference scheduled to be held in February 1975
pursuant to Article VIII, section 3 of the Treaty
on the Non-Proliferation of Nuclear Weapons."

36/ As to the other study mandated by the Bill, that dealing with
^internationalization" of the fuel cycle [Section 9(b) (1) 1 , the
environmental groups strongly believe that there is an urgent need
for such a study. Internationalization may, in the long run, prove to
be the only satisfactory way of bringing the nuclear" fuel cycle under
effective control, and it is important to begin to assess fully the
risks and benefits of such an approach.



368



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independent licensing or certifying agency with expertise in
nuclear power. Unless the United States takes the lead now in
placing adequate controls over the international fuel cycle, it may
well be too late to protect the United States and the world com-
munity from an ever increasing threat of nuclear disaster.
Thank you.



369

Appendix to Testimony of
ELDON V. C. GREENBERG



CENTER

KOI I

LAW

AND

SOCIAL

POLICY



A Al^«l V



August 15, 1974



7 0} IM n « >



Dr. Janes L. Liverman
Assistant General Manager for

Biomedical and Envi ronmental

Research and Safety Programs
United States Atomic Energy Commission
Washington, D.C. 2054 5

Envi ronmental Impact Statement on
International Nuclear Power Program

Dear Dr. Liverman:

In response to the Notice published in the Federal
Register on June 14, 1974 (39 Fed . Reg . 20835), regarding
the preparation by the United States Atomic Energy Com-
mission (the "Commission " ) of an environmental impact
statement {the "Prograrmat ic Statement"), pursuant to
Section 102(2) (C) of the National Environmental Policy Act
of 1969, 42 U.S.C. S 4332(2) (C) ("NEPA"), on the Inter-
national Nuclear Power Program (the "Program"), we are
writing on behalf of the Sierra Club, the Environmental
Defense Fund ("EDF"), the National Parks and Conservation
Association { "NCPA" ) , the Natural Resources Defense
Council ("NRDC"), and Friends of the Earth ("FOE") to
present their suggestions for consideration in connection
with preparation of the Programmatic Statement. We have
acted as counsel for all the groups (except FOE) in
the litigation which has led to the preparation of the



370



Prog ran.- at ic Statcnent { Sierra Club, et al. v. United S tates
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.

The environmental groups are all non-profit membership
organizations deeply concerned and knowledgeable about the
environrental consequences of fission power. Their combi ned
membership exceeds 275,000 persons throughout the United
States and abroad. J/ They have taken an active role in the
public debate surrounding the growth of commercial fission
generating capacity by means of litigation, testimony, com-
ments to regulatory bodies, and informational and educational
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 .



J/ The Sierra Club, whose principal place of business is
at 220 Bush St ice t, San Francisco, Calif. 9 41u4 , has a membe r-
ship of approximately 150,000 persons , including persons
residing in 6 7 fore i en countries . EDF , whose principal place
cf business is 162 Old Town Road, East Setauket, ;;.Y. 11733,
has a rvriersliLp of approximately 40, 000 persons and a 7QCj
member Scientists' Advisory Committee, including members residing
in 18 foreign count- r ins. HPCA, whose principal office is 170]
lBlh St. N.W. , Washington , b.C. 20 0u'j, lias a membership ol ap-
proximately 45,000 persons, including members residing in 36
foreign countries . N*RDC, whose principal office is at IS West
44th St., New York, :;.Y. 10035, and has additional offices
in Washington, b.C. and Palo Alto, Calif., has a member-
ship of approximately 21,000 persons, including members
residing in eight foroign countries. FOl. , whose principal
place of business is 529 Commercial St., San Francisco, Calif.
94111, has a membership of 27,000 persons and is affiliated
with "sister organizations" in ten foreign countries.



371



We believe that the importance of the Commission's
endeavor cannot be overonphas ized. It cones at a time
when the wisdom of a commitment to fission power as an
energy source has been called increasingly into ques-
tion-/ and when recent events, most notably the tests
of nuclear explosive devices carried out by Jndia
in Hay 1974, and the promises made in June 1974 , by ex-
Prcsident Nixon to supply nuclear power generating systems
and enriched nuclear fuels to Egypt and Israel, have
alerted the Congress and the public to the problems as-
sociated with the spread of fission power.



U As the Commission is aware , at the Twenty-Third
Pugwash Conference on Science and World Affairs, held in
Aulanko, Finland, from August 30 through September 4, 1973 —
a conference attended by 108 distinguished scientists from
twenty-nine countries and six international organizations —
a working grouo assianed to deal with the problem of
"Radioactive Pollution of the Environment in the Context of
the Energy Problem" , issued a Report, evaluating the problems
of and alternatives to fission energy. This Report reached
the following basic conclusion:

"Owing to the potentially grave and as yet unresolved
problems relating to waste management, diversion of
fissionable material, and m.ijor radioactivity reloases
arising from accidents, natural disasters, sabotage or
acts of war, the wisdom of a commitment to nuclear
fission as a principal energy source for mankind must
be seriously questioned at the present time . "

The Continuing Committee of Pugwash adopted the same basic
conclusion, further emphasizing that:

"Every effort should be made to develop alternatives
[to fission power] by greatly accelerating research
on potentially cleaner energy sources, and by reexamin-
ing the relation between genuine, substainable needs for
energy on the one hand, and projected demands on the
other. In the meantime, every effort should be made to
minimize by technical and regulatory means the hazards
of fission...."



372



The need for a comprehensive Programmatic Statement,
treating all aspects of federal agency- action to author-
ize, assist, support, and encourage the export of fission power
generating systems and nuclear fuels has furthermore been eloquently
expressed during the debates in both the House and the Senate
with regard to proposed amendments to Section 123 of the
Atomic Tncrgy Act of 1954, 42 U.S.C. 5 2153, to vest veto
power in Congress over Agreements for Cooperation Concern-
ing Civil Uses of Atomic Energy ("Agreements for Cooperation").
As Senator Jackson, the sponsor of NEPA, stated during the
debate on the Senate version of this bill, S. 3698,

"It is evident that the time is ripe for a searching
and careful review of our programs for the export of
nuclear technology and for a fundamental analysis o*"
the risks and benefits associated with these programs.
Accordingly, I was pleased to note in the June 14
Federal Regist er that the Atomic Energy Commission has
announced that it is preparing an environmental impact
statement on its International Nuclear Power Program.
Hopefully, this study in the context of the export of
nuclear technology will weigh carefully the alterna-
tives to nucle.ii power, its economic advuntj-je , and
disadvantages, and will assess the magnitudes of the
inherent risks associated with the proliferation of
nuel.-.ir t. ci,i,.,!ui V , such as the standards to be
applied in Ion tijn countries for reoctor construction
and ooeration, the potential for diversion of fis-
sionable material by national and subnational groups,
and all measures which are essential to prevent the
use of nuclear fission by participants in the Program
for destructive uses." 120 Cong, Fee. S. 12115
(July 10, 1974).

Similarly, Senator rdward Kennedy of Mass achuse tts stressed,

"Each of these recent events must lead to a simple
conclusion: that the continuing transfer of nuclear
technology, ostensibly for peaceful purposes, has
raised grave issues that must be thoroughly debated



373



by the Congress and the American people. These issues
are too inportant to be decided by one branch of
Government alono. They are too important to be decided
on a business as usual basis. Secretary of State
Kissinger has rightly called for a national debate on
the major issues of our nuclear relations with the
Soviet Union. But at the same time, there must be a
national debate on the whole range of issues that
relate to the deadly spread of nuclear weapons around
the globe." 120 Cong. Rec. S. 12115 - S. 12116 (July
10, 1974) . V



5/ In addition to the overall and general analysis
which - should be contained in the Programmatic Statement, it
is apparent that searching, in-depth individual analyses
should be made of the potential inpacts of and alternatives
to the newly proposed Middle Eastern agreements. As
stressed in our letter of July 2, 1974, to Dr. Dixy Lee Ray,
"Examination of these risks and their potential adverse
consequences simply cannot await preparation of or be
subsumed within the Prograr-atic Statement." Similar
sentiments were expressed by Senator Jackson during the
floor debate on S. 3698:

"The specific sales of nuclear power reactors to Egypt
and Israel must receive special and individualized
analysis, discussing, at a nnimum, the issues involved
in anv general analvsis." 120 Cong . Rec . S. 12115
(July' 10, 1974).

In this context, we would emhasize that the preparation
and consideration of the Prcgranratic Statement can in no
way be deemed to relieve the Conrussion of its obligations
un.ier NEPA to prepare environmental impact statements
covering individual actions whose environmental impacts
arc not adequately dealt with in the Programmatic Statement
itself. Cf. Scientists' Institute for Public Information ,
I nc. v. Atomic Energy Cc-.- lesion . 156 U.S. App. D.C. 395,
481 F.2d 1079 ( 1 9 7 3 j ; Council on Environmental Quality,
NETA Guidelines, 40 CFR S 1500.6(d)(1).



374



The need for and importance of the Programmatic
Statement is furth. i underscored by the profound ethical
and social itnpl icat ions of the spread of fission power.
As has been emphasized by Alvin Weinberg, in his widely-
cited article, "Social Institutions and Nuclear Energy",
Science , July 7, 1972, at 27, whatever the benefits that
may be associated with the production of electrical energy
by nuclear fission, these benefits can only be achieved
at the cost of a "Faustian bargain with society", which
will demand "both a vigilance and a longevity of our social
institutions that ve are quite unaccustomed to".j/ The
United States is perhaps in the unique position of being
able to advise those who seek to "go nuclear" of the risks
and benefits of this source of power. Prospective foreign
purchasers of United States fission power generating
systems and nuclear fuels may not have the technical or
regulatory sophistication necessary to understand fully
all the implications of their choices. Further, in many
countries information with respect to nuclear power