The Department of State believes that the Commission's previously announced holdings that it generally does not have jurisdiction to consider health, safety and environmental impacts within a recipient country of a United States nuclear export are correct. Edlow International Company, 3 NRC 563, 584-85 (1976); Babcock & Wilcox, 5 NRC 1332, 1336-46 (1977); Edlow International Company, 5 NRC 1358, 1364 (1977). We fully support the position, justified in detail in the Babcock case, that the National Environmental Policy Act of 1969 does not require any such review. Further, while the Commission may not issue a reactor or fuel license if the issuance of the license would be inimical to the health and safety of the public, 42 U.S.C. 2077 (c), 2133 (ā), we agree with the previous Commission holdings that this standard refers to persons within the United States. Neither the legislative history nor consistent administrative practice support any other view. Edlow International Company, 3 NRC 563, 582-84 and footnote 10 (1976). However, the Department believes there are circumstances in which certain health, safety and environmental factors may be taken into account by the Commission. First, the health and safety of the United States public may be affected by potential serious impacts a project may have on the environment of the "global commons". Since the Commission is authorized to review impacts on the public within the United States, it may necessarily review any global commons impacts of a project which would be so severe as to be likely to affect that public. As indicated below, the Department believes that the way for the Commission to meet any obligation to review such impacts is by reference to the existing environmental documentation. U. S. Nuclear Power Export Activities, ERDA-1542 (1976). Second, the Commission is responsible for determining that - - a proposed export would not be inimical to the common defense and security of the United States. 42 U.S.C. 2014 (g), 2077 (c), 2133 (d), 2139 (b), 2155 (a). It is conceivable that a health, safety or environmental risk could so threaten United States relations with a recipient country or a U. S. military facility in that country that it would jeopardize important United States security or defense interests. The Department believes that the Commission should be guided by the Executive branch on whether, in a particular case, considerations of a health, safety or environmental nature might have such an impact. Only then does the Department believe consideration of these factors by the Commission would be warranted, as only then might it be maintained that the common defense and security is implicated. It should be noted that in respect of issues relating to the common defense and security, the Commission has recognized the weight to be accorded to Executive branch views. Edlow International Company, 3 NRC 563, 586 (1976). With specific reference to the seven issues raised by petitioners and listed on page 2 of the Commission's October 19 Order, the Department believes that any of these issues may be considered to the extent it impacts on the common defense and security of the United States or on the health and safety of. the United States public. Question 2: Is the Commission's health, safety or environ- The Department's view with respect to the Commission's authority to consider foreign health, safety and environmental issues is set forth above. The Department believes that there are no other legal principles which permit or require the Commission to examine these matters as a part of its licensing review. Indeed, the Commission, in its licensing review,is required by statute to grant export licenses on a timely basis when all the applicable statutory requirements are met. 22 U.S.C. 3221, 42 U.S.c. 2155. Thus, the law makes clear that the Commission may only review matters encompassed by statutory criteria set forth in the Atomic Energy Act of 1954 and the Nuclear Non-Proliferation Act of 1978 and may not base its review of licenses on other, more vaguely defined, legal "principles". Question 3: What issues arising from the application to export a nuclear facility to the Philippines should the Commission examine in any future public proceeding? In the instant case, questions were raised as to whether the criteria chosen for the plant were appropriate in view of the area's general seismic and volcanic activity. The Department considered these questions serious enough to warrant a review to determine whether health, safety or environmental impacts could be anticipated which would be of a sufficient gravity to lead to the conclusion that issuance of the export license would be inimical to U. S. common defense and security. Moreover, in the instant case there are a large number of United States citizens located at close proximity to two major U. S. defense facilities on a sustained and continuing basis: Subic Bay Naval Base is approximately 12 miles from the Napot Point site, with approximately 6500 United States citizens, and Clark Air Force Base, approximately 42 miles distant, with approximately 20,800 United States citizens. In the instant case, the Department believes the Commission may appropriately review the judgment of the Executive branch that the criteria chosen for the plant, taking into account the area's seismic and volcanic activity, are not likely to cause health, safety or environment risks of a gravity sufficient to warrant the conclusion that issuance of the export licenses would be inimical to the United States common defense and security. Further, the Department considers that if the Commission thinks that public participation can assist it in its review of this limited issue, this is the issue which future public comment should address." The Department notes that the Commission has discretion to afford a hearing on this issue if it decides the statutory standards for a hearing are met. Section 304 (b) (2) of the Nuclear Non-Proliferation Act of 1978, 42 U.S.C. 2155a, 10 CFR 110.84 (a). The Department does not believe petitioners are entitled to a hearing since in our view section 304 (c) of the Nuclear Non-Proliferation Act of 1978, 42 U.S.C. 2155a, eliminated any right to a hearing in a nuclear export licensing proceeding based on section 189a of the Atomic Energy Act, 42 U.S.C. 2239, and established that the exclusive basis for hearings in such a proceeding are the Commission procedures established pursuant to Section 304 (b). The District of Columbia Court of Appeals supported this view when it held that the precedential value of NRC orders on rights of persons to intervene had been eliminated and that new NRC procedures would control hearing rights in future cases. Natural Resources Defense Council, Inc., v. U. S. Nuclear Regulatory Commission. 580 F.2d 698, 700 (D. C. Cir. 1978) (per curiam). In our view, the Congress intended to (continued next page) Question 4: What procedural format should the Commission adopt to examine any foreign health, safety and environmental issues falling ithin its jurisdiction? The possible procedures which the Commission may employ for public hearing are set forth in 10 CFR 110, subparts 1-K. The Commission's procedures provide for written or legislativetype oral hearings, or a combination of the two. Both the law and the Commission's own procedures provide that these procedures constitute the exclusive basis for bearings in nuclear export licensing proceedings. The Nuclear Non-Pro 1978, section 304 (c); 110 CFR 110.80. ration Act of The choice open to the Commission, if it determines to conduct a hearing on the substantive aspects of the instant proceeding, is thus to hold either a written hearing or a legislative-type oral hearing, or a combination of the two. It is the Department's view that the preferable format would be a written hearing on an expedited schedule. The substantive issues are primarily of a technical nature and we believe can most usefully be addressed in a written manner. The Department believes oral argument would not provide the Commission information that could not be communicated equally well in writing. Given the long period of time that this proceeding has been (continued from previous page) - eliminate the need for complex standing arguments in export licensing proceedings and instead establish by statute one simple criterion whether, in the Commission's judgment, public participation would be in the public interest and assist the Commission in making its statutory determinations. |