ML19260E362
| ML19260E362 | |
| Person / Time | |
|---|---|
| Issue date: | 06/06/1980 |
| From: | Ahearne J NRC COMMISSION (OCM) |
| To: | Hart G SENATE, ENVIRONMENT & PUBLIC WORKS |
| Shared Package | |
| ML19260E363 | List: |
| References | |
| NUDOCS 8007090104 | |
| Download: ML19260E362 (11) | |
Text
t
/ pnMe
- o,
~
~ NUCLEAR REGULATORY COMMISSION t
u UNITED STATES 8
o
{
,E WASHINGTON, D. C. 20565
\\,*****/
June 6, 1980 CHAIRMAN The Honorable Gary Hart, Chaiman
~
Subcommittee on Nuclear Regulation Committee on Environment and Public Works ' --
m-
~-
_, Washington, D.C.
20510 i,
~
. I Dear Mr'. ChaimanY_ ". ~[
." ~6 This is in response to your letter of May 1,1980, which poses several questions concerning the Commission's approach to foreign health and safety issues.
As you know, on Tuesday, May 6th, the Commission issued its deci-sion regarding pending export licensing applications for the export of a nuclear power reactor and certain components to the Philippines. The opinions of the various commissioners in the Philippine proceeding con-tained a detailed discussion of most of the issues raised by the questions in your letter. The Memoranda and Orders and Commissioner Opinions in the Philippine proceeding have previously been transmitted to your office.
Additional copies are enclosed.
In addition, I am attaching Commission responses to the specific questions posed in your letter.
As indicated in his dissenting opinion, Commissioner Bradford disagrees with the Commission's result and notes that his answers to most of your specific questions are set forth in his opinion.
If you have further questions about how the Commission will be implementing the decisions reached in the Philippine proceeding, please do not hesitate to contact me.
Sfncerely l
t A-Jo n F. Ahearne
Enclosures:
1.
Answers to Questions 2.
Philippine Orders and Opinions cc: Sen. Alan Si
.an 8007000 p
V t
Question 1.
Under this decision, would the Commission license the export of a reactor, the safety design or the siting of which it con-siders inadequate for operation in the United States? Please explain.
As discussed in the opinions of Commissioners Kennedy and Hendrie and Commis-stoner Gilinsky, the Commission believes that it would not be possible to con-duct a design or siting review of a nuclear power facility to be constructed in a foreign nation which would be equivalent to that conducted for a domestic reactor. Often a recipient nation merely purchases part of a facility (such as the major components) from the United St6tes, integrating those components with items purchased from a third country supplier or produced domestically. Since the safety of a facility ultimately depends upon the integration of such com-ponents, it would be extremely difficult for the Commission to conduct a review leading to a finding that the facility was designed to standards that would be applied to a domestic U.S. reactor. With regard to siting, the Kennedy /Hendrie opinion points out on page 23 that "[s]ite visits by NRC technical experts, including verificatior, of data on site characteristics, which are an essential element of the domestic review process, could not be conducted without the consent of the foreign government." For these reasons as well as others more fully described in the opinions of the Commission majority, we dn not believe that it is appropriate, or even possible, to conduct the sama kind of licensing reviews for exportta f cilities as is conducted for reactors to be constructed i
in the United States.
As noted in his formal opinion, Commissioner Bradford would prefer to conduct at least a limited health and safety review. While he agrees that the actual
s 2
rejection of an export would be highly unlikely, he notes that there is a range of other alternatives such as offers of assistance and letters of advice both to recipient countries, and to those responsible for significant concentrations of American citizens.
Question la.
If a recipient country invoked general principles of international law to prevent the Commission from independently visiting and analyzing the proposed reactor site, would the Commission still license the export? Please explain.
As stated in the earlier portion of our response to this question, the inability to make site visits and to verify other data on site characteristics would be a substantial barrier to any NRC finding that a foreign reactor site complies with siting requirements that would be applied in this country. Under the decision of the majority of the canmissioners, the NRC will examine a proposed facility to be exported from the U.S. to determine whether it would create unacceptable health, safety or environmental risks to United States territory or the global commons. We would not expect that analysis of these kinds of risks would ordi-narily require independent NRC site visits (an obvious exception would be reactors sited in foreign countries close to United States borders). Therefore, in the typical reactor export case, the Commission would be able to license an export without conducting site visits.
In fact, this was the procedure adopted in the Philippine proceeding.
Commissioner Bradford thinks the export would in all probability still take place with the possible exception of a case in which the health ar.d safety of substantial numbers of knerican citizens was involved.
j-3 Question 1b.
If the Commission decides to render an export licensing decision even if it has not independently obtained sufficient siting infomation, would the Commission review the design of the exported reactor to the same extent it would review the design of a domestic reactor? Please explain.
As explained in the Kennedy /Hendrie and Gilinsky opinions, the Commission has decided not to conduct a detailed design review of exported reactors as part of the licensing process.,As stated on pages 23 and 24 of the Kennedy /Hendrie opinion:
Some commenters suggested that the Commission review at a minimum should include a review of the proposed reactor design.
Even though this con-ceivably could be done without intruding upon foreign sovereignty, such a review would also be exceedingly difficult.
In most cases the recipient nation purchases only a portion of the required equipment for the reactor from the United States. Thus, a design review would require the NRC to examine the interface of U.S. supplied equipment with systems and com-ponents produced in the recipient nation or procured from third-country suppliers.
Each review would be unique ar.d NRC staff experience gained from its review of U.S. reactor designs aight be of limited value.
Even more significantly, because the NRC has no continuing regulatory jurisdiction over activities associated with the reactor project once the export license is issued and commodities are shipped, the NRC cannot inspect the plant as it is being constructed to ensure that the plant is being built according to specifications.
Moreover, the NRC has no control over the selection and training of the individuals who will manage and operate the reactor, and could not periodically inspect the plant once it is operating.
In the absence of such controls, it is our view that the NRC would be unable to make a meaningful safety detennination, A partial review could in fact have adverse results because it couU give the mis-leading impression that the NRC is assuring the safety of the facility as eventually constructed, and is assuming some responsibility for its safety.
This could lead recipient nations to place undue reliance upon the NRC review and to reduce their own efforts and expenditures to develop an indigenous capability to construct, operate, and maintain the plant safety.
Any NRC review could have severe foreign policy repercussions because it could be construed as a declaration that a recipient government is in-capable of determining what is in the best interests of individuals residing in its country in the sphere of health, safety and the environment. Under international law the recipient country is responsible for the health and safety of all individuals residing in its territory.
4 Commissioner Gilinsky's opinion also discusses this subject on pages 3 and 4:
These limitations exist even in an atypical case, such as this one, where the bulk of the reactor components is procured from U.S. suppliers.
In the typical export licensing case where some portions of the plant, perhaps the reactor core, vessel and related equipment, may be purchased from a U.S.
manufacturer and other portions of the plant from foreign nanufacturers, possibly with a foreign architect-engineering f.irm supervising the project, an NRC finding as to the safety of the proposed plant would be even more difficult to make.
It would require an evaluation of the foreign com-ponents and of the meshing under the supervision of a foreign entity between such components and the items of U.S. origin.
But even this evaluation would not gc to the heart of the safety issue.
As demonstrated for all the world by the Three Mile Island accident, the safety of a nuclear reactor depends crucially on the manner in which it is operated.
Even if the NRC were in a position to adequately review the siting and construction of a foreign nuclear plant, it would not be in a position to oversee the training and licensing of the plant's operators and managers, nor could it regulate the plant's operations over a period of thirty years.
Ouestion 2.
As part of its export licensing review, will the Commission still consider health and safety effects upon U.S. citizens and other U.S. interests in the recipient country as pa rt of its determina-tion of "inimicality to the common defense and security"? Please explain.
The majority o' commissic ters has decided that although it has the discretion to consider health and safety effects upon United States citizens and other U.S.
interests, it will not conduct such a review as part of its export licensing process. The reasoning which led a majority of commissioners to this conclusion is set forth in Jetail in the Kennedy /Hendrie opinion in Part II. A.2., entitled "NRC Authority to Evaluate the Health, Safety and Environmental Effects of Exported Facilities Upon U.S. Interests Abroad."
In addition to the reasons set forth in the response to question 1 above, the Kennedy /Hendrie opinion noted that:
5 Any NRC review could have severe foreign policy repercussions because it could be construed as a declaration that a recipient government is in-capable of detemining what is in the best interests of individuals resid-ing in its country in the sphere of health, safety and the environment.
Under international law the recipient country is responsible for the health and safety of all individuals residing in its territory.
Commissioner Gilinsky pointed out on page 2 of his opinion that there were other approaches to protecting those interests:
This is not to say that local impacts abroad of U.S. nuclear exports are not a proper concern of the U.S. Government.
They often are, most par-ticularly when they potentially affect Americans abroad. NRC can play a useful role in the Government's examination of those questions by providing advice and assistance to the Department of State and, where U.S. bases abroad are involved, to the Department of Defense in their review of the export application.
NRC advice on the ability of the recipient country to assure the safety of the reactor export in question would be especially useful to the Export-Import Bank and should be available in its review of the loan application.
Question 2a.
If so, will the Commission consider these effects in its review of the Westinghouse petition for a license to export a reactor to the Philippines?
As the Commission's decision of May 6th makes clear, the Commission decided not to analyze possible health and safety impacts upon U.S. citizens and other interests in the Philippines as part of its fomal export licensing ri.iew.
Question 3.
On what grounds did the Commission distinguish between a juris-dictional scope limited to a review of effects upon the " global commons" and one also covering effects upon the health and safety of U.S. citizens in a recipient country?
The Commission's decision to analyze the effects on the global commons and not those which would occur within a recipient country, is based primarily on legal
6 principles concerning the extra-territorial application of United States domes-tic laws.
In their opinion Commissioners Kennedy and Hendrie described this principle as follows:
This rule of domestic U.S. law is linked to the fundamental international law concept of " territorial sovereignty" which governs the conduct of relations between nation states.
in international law has been described by The Pemanent Court of In national Justice in the following tenns:
... The first and foremost restriction imposed by international law upon a State is that -- failing the existence of a pemissive rule to the contrary -- it may not exercise its power in any form in the territory of another State.
Regulation of economic and industrial activities taking place within a nation's territorial boundaries, to protect the health and safety of persons residing in that nation, is a recognized function of the terri-torial sovereign.
Therefore, unless a nation agrees -- by treaty or other appropriate international arrangement -- to cede all or part of these functions to another nation or some other entity, attempts by a foreign nation to carry out such functions generally would be regarded as an un-warranted intrusion into the affairs of the territorial sovereign.
The opinion dealt with the global commons issues in Section II.A.3. as follows:
Consistent with our legal analysis regarding the consideration of U.S.
interests abroad, we do not read ambiguities in the Atomic Energy Act and NEPA to preclude reviews of impacts on the global commons that would result from a proposed reactor export.
In contrast to impacts that occur in territory where the recipient nation has a paramount sovereign interest, no country by definition has jurisdiction over the global commons.
Accord-ingly, less weight should be given to principles of sovereignty in de-tennining the scope of the Commission's jurisdiction. We conclude that provided that NRC reviews do not include visiting sites within the re-cipient nation to gather infomation, or otherwise intrude upon the sover-eignty of a foreign nation, consideration of impacts upon the global commons is legally permissible.
Question 3a.
What policy considerations led the Commission to decide to review one set of effects, but not the other?
7 The detailed statement of policy reasons which led the Commission to review global commons impacts and not impacts on U.S. interests within a foreign country are discussed in detail in Section II. A.2.b., pages 22 to 26 and II.A.3.b.,
pages 27 and 28 of the Kennedy /Hendrie opinion. These policy considerations have been outlined in our earlier responses to questions 2 and 3.
As the Kennedy /Hendrie opinion stated:
The primary basis for our position is that no matter how thorough the NRC review, the Commission still would not be in a position to determine that the reactor could be operated safely. We reach this conclusion because the NRC review would inherently have to be less complete than its review of domestic reactor applications.
For example, site visits by NRC technical experts, including verification of data on site characteristics, which are an essential element of the domestic review process, could not be conducted without the consent of the foreign government.
Such reviews could be con-sidered an unwarranted intrusion into the sovereignty of the recipient nation.
With regord to the global commons, the Kennedy /Hendrie views were as follows:
Since the mid-1970's the Commission has taken into account in its export licensing decisions health, safety and environmental impacts on the global The Commission has adopted this policy because these impacts commons.
occur in areas not within the sovereign jurisdiction of a single nation state.
By its very nature, protection of the global commons cannot be the sole responsibility of any single nation.
The United States is a major user of the global commons and has a responsibility to see that its own activities do not unnecessarily degrade the environmental quality of such areas.
Chairman Ahearne and Commissioner Bradford took a different view on the issue of evaluating health, safety and environmental effects in a recipient nation which could bear on U.S. interests.
As Chairman Ahearne stated in his dissent:
I also agree with the General Counsel that the statutes are ambiguous on whether the NRC may evaluate the effects of an exported facility upon U.S.
interests, and therefore the extent of such evaluation is a policy ques-tion.
In that, I agree with the Office of Policy Evaluation, which recom-mended that where there is U.S. interest, either on a military or an
8 institutionalized long tem presence of U.S. citizens, the Commission should consider health and safety effects of the exported reactor in a limited manner by reviewing all the available infomation.
Commissioner Bradford expressed the following views:
Having concluded that the law pemits an assessment of the effects of U.S.
exports at least on the health and safety of U.S. citizens abroad and on the global commons, the Commission decision establishes a practice that, in this case, leads to an assessment of the impact of =n accident on fish no closer than twelve miles to the Philippine coast while ignoring the impact of an accident on the 30,000 U.S. citizens stationed at the Subic Bay Naval Base and the Clark Air Force Base within 10 and 30 miles of the plant.
The framework for any NRC review should be a balancing of the principles of sovereignty and national regulation against our own self-interest in avoid-ing accidents and against our responsibility, as suppliers of a potentially dangerous technology, to fully infom the purchaser of the best infomation that we can develop.
Thus, our legal responsibility to consider the common defense and security, our legal responsibility to consider the health and safety of American populations living overseas, and a policy detemination to take some effective responsibility for the safe use of our exports all merge in the direction of a more comprehensive review than the Commission has chosen to undertake.
As I intimated at the outset, I believe that the Commission result in this case is unsound law and bad policy. The fact is that an accident as severe as Three Mile Island would be inimical to the common defense and security as discussed above.
Furthemore, a more severe accident could pose a specific threat to the common defense and security interests pro-tected by the Subic and Clark Bases and to the public health and safety of the 30,000 Americans at those bases.
Whatever the scope of the Commis-sion's discretion in coping with this concern, it does not have the power to refuse to evaluate it at all.. The finding that the export is not inimical to the common defense and security or to the health and safety of the public should rest at least on as detailed a review as can reasonably be made.
No such review exists.
Question 3b.
In what ways would an export licensing review limited to impacts upon the " global commons" intrude less upon the sovereignty of the recipient country than would a review that also considers health and safety effects upon either'U.S. citizens in, or resident citizens of, the recipient country?
9 As discussed earlier, a review of potential impacts on the global commons can be made without the kind of detailed design or siting review that would be necessary for a meaningful review of in-country impacts.
This kind of analysis would be based upon a general " worst case" analysis of what effects might be likely to occur in areas outside the territorial jurisdiction of any foreign state. Thus, the Commission could apply U.S. standards in evaluating those impacts without necessarily intruding into the regulatory jurisdiction of the recipient nation, as would be the likely result if impacts within the territory of a foreign sovereign were evaluated.
Question 4.
Specifically, what will the Commission review in assessing the effect of the Philippine reactor export upon the " global commons"?
As stated in Section III.B. and C. (pages 32 to 41) of the Kennedy /Hendrie opinion, the Commission reviewed a range of materials in analyzing the potential effects of the Philippine reactor export on U.S. territory and the global These materials include, but were not limited to, the following:
commons.
The concise environmental review prepared by the Executive Branch (Executive Order No.12114 sets forth the basis on which submissions of this type will be prepared).
The final generic environmental impact statement entitled "U.S. Nuclear a--
Power Export Activities" prepared by the Energy Research and Development Administration in April of 1976 (ERDA-1542).
Comments submitted by a number of participants in the fomal Philippine export licensing proceeding (these participants include the Center for t.aw and Social Policy, Sierra Club, the Natural Resources Defense Counsel, Inc., National Audubon Society, Friends of the Earth, The Philippine Move-ment for Environmental Protection, Friends of the Philippine People, and the Westinghouse Corporation).
Draft Generic Environmental Impact Statement prepared by the U.S. Depart-ment of Energy entitled " Storage of Foreign Spent Power Reactor Fuel" (1978).
10 Final Environmental Statement related to manufacturing of Floating Nuclear Power Plants by Offshore Power Systems, NUREG-0502 (December 1978).
The Liquid Pathway Generic Study, NUREG-0400 (February 1978).
Ouestion 4a.
Would a review that relies substantially upon the assessment submitted by the Executive Branch, pursuant to E.0.12114, compromise the independence of the Conmission?
As the Commission's handling of the Philippine export proceeding indicates, the Executive Branch assessment, prepared pursuant to E.0. No.12114, constitutes only one portion of the range of materials the Commission expects to consider in a typical reactor export licensing case, when assessing health, safety and environmental effects on U.S. territory and the global commons.
With regard to the issue of the NRC's independent role in the nuclear export licensing process, it is important to keep in mind that the Nuclear Non-Proliferation Act of 1978 reposes final authority over the export of licensed commodities in the President and ultimately the Congress.
By enacting the NNPA, Congress indicated that it expects the NRC to conduct an independent review of the Executive Branch judg-ment submitted to the Commission.
However, if disagreements arise between the Commission and the Executive Branch over approval of a particular export license application, a mechanism for Presidential decision and Congressional review was provided.
The Commission does not believe that its statutory licensing role is compromised by a process in which it considers and evaluates an environmental document prepared by Executive Branch agencies pursuant to Executive Order No.
12114.
The Commission expects to participate in the process of developing these environmental documents and, as in the past, will not hesitate to call for further analysis or express differing views on the issues, if that should be warranted.