ML19290C891

Submits Position on Points Related to NEPA to Assist NRC in Deliberations Re Export of Reactor & Components to Philippines.Nrc Has Authority to Consider Environ Impacts within Foreign Nation in Course of Decisionmaking

ML19290C891
Person / Time
Site:	Marble Hill
Issue date:	01/25/1980
From:	Yost N COUNCIL ON ENVIRONMENTAL QUALITY
To:	Ahearne J NRC COMMISSION (OCM)
References
NUDOCS 8002150011
Download: ML19290C891 (4)

Text

.

, EXECUTIVE OFFICE OF THE PRESIDENT

• *

• COUNCIL ON ENVIRONMENTAL QUALITY 722 JACKSON PLACE. N. W.

WASHINGTON. o. C. 20006 (O

@ A January 25, 1980 eo B R .! PO .-[l  % )

Dr. John Ahearne, Chair =an

% W / /Cj

/

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Q' ", " J /-

Re: In the Matter of Westinghouse Electric Corporation (Exports to the Philippines)

Docket No. 110-0495 Application XR-120

Dear Chair =an Ahearne:

On November 15, 1979, the Dapartment of State filed its tiews on certain procedural and jurisdictional issues in the Co==ission'a proceeding on the application of the Westinghouse Electric Corporation to export a nuclear reactor and components to the Philippines. While the Department of State stated in the preamble to its views that it was making the filing "on behalf of the Executive Branch", the Department was not expressing the position of the Council and other Executive Branch agencies on these issues. Rather, in developing those views the State Department consulted only'with those offices mentioned in Section 126(a)(1) of the Atomic Energy Act of 1954, as amended.* The Council would like to express its position on several points relating to the National Environ-mental Policy Act in order to assist the Com=ission in its deliberations.

In doing so it is mindful of the need to maintain the United States as a reliable s,., plier of nuclear technology as mandated by the Nuclear Nonproliferation Act of 1978.

The Department of State expresses its view that the Commission does not have jurisdiction "to consider health safety and environmental impacts within a re~cipient country of a United States nuclear export" (p. 2) and "that the NEPA does not apply to i= pacts within foreign countries" (p.

8). On this point the Council departs from the State Department view.

We rely upon Executive Order 11214 and the National Environ = ental Policy Act, as discussed hereafter. First, particularly as here where the issue is the jurisdiction or authority of an agency to consider enviren-mental effects (as opposed to what the law requires the agency to consider),

NEPA supplements the NRC's authority to consider health and environmental

• Secretaries of Energy, Defense and Coc=erce, and the Director of the Ar=s Control and Disarmament Agency.

8002150 0 ( f -

?

impacts. NEPA Section 105, 42 U.S.C. 4335;'Zabel v. Tabb, 430 F.2d 199, 214 (5th Cir. 1970) cert. denied 401 U.S. 910 (1971); Public Service Co.

of New Hampshire v. NRC, 582 F.2d 77 (1st Cir.1978) cert. denied U . S . __ __ , 47 U.S.L.W. 3408. The longstanding debate over the extra-territustal reach of NEPA's Section 102(2)(C) cannot be allowed to cloud this point. Regardless of what position the NRC or any federal agency

• takes with respect to whether NEPA's Section 102(2)(C) (the environmental e impact statement requirement) applies where the environmental effects I occur only in a foreign country, it cannot be said that NEPA's goals and policies and specifically NEPA'c Section 102(2)(F) do not apply in cases such as the proceeding currently under censideration. Section 102(2)(F) provides that "to the fullest extent possible... all agencies of the  !

Federal Govern =ent shall -

Recognize the worldwide and long-range character of environ = ental -

problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, -

and programs designed to m'vdm4ze international cooperation in I anticipating and preventing a decline in the quality of mankind's l world environ =ent" [

The Com=ission obviously has supplementary jurisdiction under NEPA in this sense. It clearly has authority.to consider environmental impacts in the course of its decisionenking, where those i= pacts are to be felt solely within a foreign nation.

Another issue raised by the State Department views is the extent to which the Commission must prepare and consider environmental documents .

in connection with the exports of nuclear reactors.

{

Executive Order 12114 of January 4, 1979, directs responsible officials [

of Federal agencies having ultimate responsibility for major actions [

with environmental effects abroad to take environmental considerations i into account in making decisions on such actions. E.O. 12114 specifically E applies to the exports of nuclear reactors (Section 2-5(v)). The Order  :

further provides for the preparation of certain documents for various [

categories .of actions (Section 2-4(b)). l l

The reviews and documents required by E.O. 12114 constitute minimum procedures required of federal agencies. Section 2-4(c) provides that:

Nothing in this Order shall serve.. .to prevent any agency from providing in its procedures for measures in addition to those provided for herein to further the purpose of the National Environ-mental Policy Act and other environmental laws ... consistent with the foreign and national security policies of the United States.

e

• E.O.12114 Section 2-4(c) discussed below, authorizes agencies to provide for measures in addition to those provided in the E.O. to further the purpose of NEPA.

's However, even apart from Executive Order 12114, the Co= mission's obligation to exerciss "its statutory powers in the furtherance of NEPA" has been ,

confirmed by the U.S. Court of Appeals in ~Publ*r Service Company of New  ;

Ha=oshire v. Nuclear Regulatorv Co ission, sunra. Thus, the types of review called for in E.O. 12114 should constitute a minimum standard for the Com=ission to follow. We urge in this particular proceeding that the Coc=1ssion go beyond the mini =um and consider all reasonably avail- -

able environnental docu=ents or studies concerning the proposed export.

It is also the Council'a opinion that a major federal action which has _

the potential for significantly affecting the environment of the g!.obal commons outside the jurisdiction of any nation, such as the oceans:  :

necessitates the preparation and' consideration of an environmental [

impact statement. The Consission has so ruled in Babcock and Wilcox,  !

5 NRC 1332 (June 27,1977). This appears to be the position of the Depart =eni sf Ctate as well (p. 2).* In view of the proposed location for the Philippine reactor and the still intense international conc trn for reactor safety as a result of the Three Mile Island accident, 11 is incu= bent upon the Commission to make a searching mmination of the neighboring global cacsons to determine the extent of its obligation to

• The State Department supports the Co= mission's decision in the [

Babcock and Wilcox case. See also E.O.12114, Section 2-4(b)(1);  ;

iflderness Societv v. Morton 463 F.2d 1261 (D.C. Cir.1972);

Sierra Club v. AEC, F. Supp. , 4 ELR 20885 (D.D.C.

1974); Sierra Club v. Coleman, 405 F. Supp. 53 (D.D.C. 1975) and 421 F. Supp. 63 (D.D.C.1976); and EDF v. AID, F. Supp.

, 6 ELR 20121 (D.D.C.1975) (the latter two cases specifically contemplating a review of impacts within individual foreign countries).

P e

e e e

N L 4_  ;

f r f.

prepare an environ = ental i= pact statement.* Indeed, the Council can 76 think of no more co=pellir.g an exa=ple for a thoughtful consideration of ij the issue than the proposed exportation of a nuclear reactor for siting y-in a geologically unstable area on an island surrounded by ocean which k is part of the global co ons. E E

We thank you for your consideration of the Council's views.

!(f i-Sincerely, F2

[

NICHOLAS C. YOST M General Counsel [

ii.

cc: Commissioners Parties to the Proceedings {!?

=

h R

5

!?

• The Department of Justice has reinforced this point in its opinion if l}

concerning NEPA's application outside the U.S. (reprinted in the  !![-

Legal Times, October 9,1978). In that opinion Justice said: "Our 51 ability successfully to defend agency decisions not to proceed with ._'

$ 102(2)(C) environ = ental i= pact state =ents vill in most cases 3

[ including global co==ons cases] depend.on the docu=entation of the i agency's threshold deter =1 nation that there vill be no signifcant li impact on the United States environ =ent or the global co==ons" II (e=phasis added).  :-i if Is

?

II d

v 5?

4

=

.=.

5 6

-