ML19294C107
| ML19294C107 | |
| Person / Time | |
|---|---|
| Site: | 05000574 |
| Issue date: | 02/29/1980 |
| From: | Bettauer R STATE, DEPT. OF |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8003060719 | |
| Download: ML19294C107 (6) | |
Text
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5 UNITED STATES OF AMERICA
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BEFORE THE COMMISSION 7
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Application No. XR-120 WESTINGHOUSE ELECTRIC CORP.
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Docket No. 110-0495
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(Exports to the Philippines)
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Application No. XCOM-0013
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DEPARTMENT OF STATE'S RESPONSE TO THE COMMISSION'S ORDER OF FEBRUARY 8, 1980 This pleading is filed by the Department of State, on behalf of the Executive branch, in response t, the Commission's Order of February 8, 1980, in the captioned proceeding, requesting views on (a) the health, safety or environmental effects the proposed exports would have upon the global commons or the territory of the United States, and (b) the relationship of these effects to the common defense and security of the United States.
The concise environment review submitted by the Department of State to the Nuclear Regulatory Commission along with the Executive branch judgment concerning license application XR-120, on September 28, 1979, dealt with effects on the United States and the global commons on pages 21-22.
That document indicated:
- In accordance with S126 a(1) of the Atomic Ener'y Act, 42 U.S.C.
2155a (1), and the Executive branch procedures est blished pursuant to the Nuclear Non-Proliferation Act of 1978, 43 Fed. Reg. 25326 et seq.,
to which the NRC has agreed, the Department of State consults wIth the Departments of Energy, Defense and Commerce and the Arms Control and Disarmament Agency in preparing Executive branch views and positions in export licensing matters.
80030e<>~)lQ
. "[E]ffects on the U.
S.
and global commons have been considered in the Final Environmental Statement on U.
S. Nuclear Power Export Activities, (ERDA-154 2 ) of April 1976, which covered a variety of activities including those.that are associated with this type of facility.*
"ERDA-1542 concluded, among other things, that the level of projected United States nuclear power export activities through the year 2000 should not entail significant and unacceptable adverse environmental impacts to the United States and global commons.
The nature of United States nuclear power export activities, as they relate to potential environmental impacts, has not altered substantially since issuance of ERDA-1542 in April 1976, except that the export activity levels have proved lower than then projected.
Therefore, the environmental impact of such activities is expected to be even less than estimated in ERDA-1542.
There is also no reason to believe that the nature of such activities described in ERDA-1542, as they relate to environmental impacts, will significantly change in the foreseeable future."
We note that ERDA-1542 was very specific in its inclusion in its scope of impacts of nuclear power export activities that occur within the United States, as well as impacts "which are related to U.
S. nuclear power exports that potentially could affect the world's environment (i.e., global impacts) and, hence, the U.
S.
and the high seas."
Section 2.1, Volume 1, ERDA-1542.
- Executive Order 12114 requires that implementing agency procedures provide that federal agencies, in making decisions concerning major federal actions significantly affecting the environment of the global commons outside the jurisdiction of any nation, consider environmental impact statements, including generic, program and specific statements.
Sections 2-3 (a), 2-4 (a) (i) and (b) (i).
The Order further provides that such procedures may provide that an agency need not prepare a new document when such a document already exists.
Section 2-4(b).
The Unified Procedures Applicable to Major Federal Actions Relating to Nuclear Activities Subject to Executive Order 12114 contain provisions that so provide.
Sections 3(b), 4 (b), 14 (a),
44 F.R.
65560-63.
Thus, while ERDA-1542 was prepared in advance of the effective date of the Executive Order and the Unified Procedures, for global commons impacts purposes, it is an appropriate environmental document covering the proposed action.
. The Department believes that the Commission should rely on ERDA-1542 for its consideration of the impacts of the proposed reactor export on the global commons and United States.
The Commission has previously relied upon that document.
Edlow Inter-national Company, 3 NRC 563, 585 (1976), 5 NRC 1358, 1364-65 (1977);
Babcock & Wilcox, 5 NRC 1332, 1353 (1977).
The Department pointed this out at page 12 of its November 14, 1979, pleading, and the Commission's staff made the same point at page 8 of its November 19, 1979, pleading.
Since the impacts on the United States and on the global commons of the nuclear reactor export program have been considered on a generic basis, and have been found not to be significant, the Department does not believe that further case-specific investigation of those impacts is required or appropriate.
We note that, at its January 29, 1980, meeting, a majority of the Commissioners concluded that the Commission would not consider environmental, health and safety impacts in foreign countries.
An important reason given at that meeting was the need to avoid the foreign relations and practical difficulties of site-specific foreign analysis.
It would frustrate the Commission's basic decision, and introduce unacceptable uncertainty into the nuclear export program, if, in the process of considering impacts on the global commons, the Commission were drawn into intrusive and impractical site-specific analysis similar to the kind that the Commission decided not to undertake in respect of impacts in foreign countries.
This would be the consequence if the Commission were to accept the argument that because the power plant is located not far from the sea, the Commission must consider the nature and magnitude of
. seismic and geological risks posed by the reactor site, the ade-quacy of the reactor's seismic design, or other similar project-specific factors that might, in the event of a catastrophic accident, affect the marine environment of the Philippines.
It would not be tenable to argue, except under manifestly extraordinary conditions, that potential effects on marine life in particular coastal waters are effects on the global commons that have implications for the health and safety of the public in the United States.
Moreover, to the extent that impacts may affect resources over which the coastal state exercises recognized jurisdiction (usually fisheries resources within 200 nautical miles of the coast), such impacts should be treated for present purposes as impacts in a foreign jurisdiction and not on the global commons.
In this connection, we believe, as pointed out on page 2 of the Department's November 14, 1979, pleading, that the Commission's authority to review global commons impacts of a project is based on the theory that in extreme circumstances the oceans or the atmosphere may be the carrier of impacts so extensive as to affect the health and safety of the public within the United States.
It is such impacts which the Commission must consider pursuant to the requirement in S103 d of the Atomic Energy Act, 42 U.S.C.
2133d, that it not issue a license if issuance would be inimical to the health and safety of the public in the United States.
Thus, in looking at global commons impacts, the Commission should focus on the generic, systemic impacts of the kind considered in ERDA-1542, and not on impacts of a local nature that may not be so serious or so significant that they can affect the global commons as a system.
The Department does not believe that the health, safety or environmental effects of the proposed exports on the global commons
. or the territory of the United States have any impact on the common defense and security of the United States.
It is the Department's view, as indicated on pages 2-3 of its November 14, 1979, pleading, that impacts on the global commons or the territory of the United States relate only to the Commission's finding on inimicality to the health and safety of the United States public.
It was only in connection with potential impacts within foreign countries that the Department indicated that in certain limited and exceptional circumstances the United States common defense and security might be affteted.
Such potential impacts within foreign countries are taken into account by the Department in accordance with Executive Order 12114 and the Unified Procedures Applicable to Major Federal Actions Relating to Nuclear Activities Subject to Executive Order 12114, 44 Fed. Reg 65560-63.
These provide a mechanism to review such potential impacts consistent with foreign policy and non-prolifera-tion objectives.
The Department is keenly aware of its responsi-bilities relating to the potential health, safety and environmental impacts of nuclear activities.
The Department's concern in this case and its efforts to cooperate with the Philippines in addressing these matters, are demonstrated in section 3.C of the Export License Application Analysis submitted under cover of the September 28, 1979, Executive branch judgment on application XR-120, as well as by the Concise Environmental Review transmitted as an enclosure.
These documents addressed, among other subjects, site-related safety and environmental considerations, the U.
S. military installations in the Philippines, and Philippine atomic energy regulatory organi-zation and procedures.
In this case, the Executive branch concluded
- in its judgment of September 28, 1979, that the proposed export would not be inimical to the common defense and security of the United States.
M/
auzt Ronald J.
Bettauer Assista.-t Legal Adviser for Nuclear Affairs Department of State February 29, 1980