staff decide whether the other documents should be included in the file or printed in the record itself.

Mr. AHEARNE. Fine.

Mr. BINGHAM. Mr. Hendrie, do you have anything to add?

Mr. HENDRIE. No, I don't, Mr. Chairman.

Mr. BINGHAM. Mr. Gilinsky.

STATEMENT OF HON. VICTOR GILINSKY, COMMISSIONER,
NUCLEAR REGULATORY COMMISSION

Mr. GILINSKY. Mr. Chairman, I wrote out a brief opinion pointing out my own thoughts on the subject, which has been submitted for the record.

DIFFERING VIEWS ON NRC RESPONSIBILITIES

I want to say only this, that in declining to require a safety finding on the part of the NRC in connection with an export or as a condition of an export, I certainly did not mean to suggest that the impacts of these exports are not the proper concern of the U.S. Government. They often are.

It is my feeling that the NRC can play a useful role here in the Government's examination of these questions by providing advice and help to other departments of the Government, most particularly State and Defense where U.S. bases are involved.

I know this sounds a little bit like the kind of suggestions people make about our export licensing in general, and I think the situation concerning health and safety is rather different than that concerning questions of nonproliferation, where we really are concerned ultimately about effects on the United States.

I want to also say that in declining to consider the health and safety questions associated with this export, we are neither endorsing the safety of this reactor, the one that we dealt with yesterday, or for that matter criticising its safety.

Thank you.

Mr. BINGHAM. Thank you. Mr. Bradford, you have a somewhat different view, so perhaps you would state that for us in a little more detail.

STATEMENT OF HON. PETER A. BRADFORD, COMMISSIONER,

NUCLEAR REGULATORY COMMISSION

Mr. BRADFORD. Thank you, Mr. Chairman. It is set forth in my separate opinion in the Philippine case and I would certainly stand by that as being the best source document for it.

In summary, though, my view is that there are some circumstances, and the Philippine case was certainly among them, in which a U.S. concern with health and safety questions is not only appropriate but, in my view, is required by the Atomic Energy Act.

To state the reasons as briefly as I can, first of all, it seems to me that to export reactors without doing everything that we reasonably can, and that will certainly vary from case to case, to assure that the reactor will not in fact be involved in a nuclear accident of a Three Mile Island

or worse type, is in all cases inimical to the common defense and security and in cases in which there happen to be substantial clusters of U.S. citizens living near the reactor, is also inimical to the public health and safety in the sense that that term is used in the Atomic Energy Act. I would, as a matter of law, feel that the NRC does have an obligation at least to make as much of an effort as it reasonably can to assure the safety of U.S. exports. I suggested in my opinion several examples of things that might be done.

One was a threshold determination of whether or not the particular reactor design in question would be licensable in the United States.

Another one was an indication of whether there were features about the particular site that might give rise to concern, and the third was an assessment of the adequacy of the regulatory apparatus being set up in the recipient country to the nuclear program that that country contemplated.

Mr. BINGHAM. Would you address some of the practical problems that are set forth in Chairman Ahearne's testimony with regard to staff and other resources of the Commission to carry out the types of review that you suggested?

Mr. BRADFORD. Those constraints are real. It would mean that people who now work on the licensing of particular plants within the United States would have to spend some of their time reviewing some aspects of reactor exports.

Now, it is not as though there were a great many reactor exports coming before us, but at the same time, as you know from other committees and other contacts, our agency is spread pretty thin right now, and I think if the NRC were in fact to adopt a practice of even a threshold review of export designs in a systematic way, we would have to be back before you seeking the people to do it.

SITE EVALUATION

Mr. BINGHAM. What about the question of site evaluation that you suggested would be a proper area of inquiry? What if the Philippine Government indicates that it does not want to have the NRC look at the site from that point of view?

Mr. BRADFORD. I think in most cases that would rule out a site evaluation. Now, in the special case where the proposed site also happens to be located near substantial concentrations of U.S. citizens, I would want to reserve for further thought the question of whether the export could then go forward. But in the general case, that is where the export was going to a foreign country that simply did not want to hear anything from us at all about features of the site and therefore made it impossible for the NRC to gather site-related information and in which there was not the concern related to the U.S. military base or other concentration of U.S. population, then I do not see how we could do a site review.

I think it is worth remarking, though, that one should not visualize this question as always arising in a sort of dog-in-the-manger context. If at the beginning of the export licensing process, or conceivably even during the discussions that go on between the State Department, the U.S. Embassy and the purchasing nation, the possibility of a

U.S. technical review of the site were offered, rather than being stated as a condition that would be imposed late in the game rather surprisingly in the licensing process, I would not expect to find in all cases that that would be rejected out of hand by the recipient country, and in fact, it might be regarded as a positive benefit.

ASSESSING IMPACTS ON AMERICAN CITIZENS

Mr. BINGHAM. You were quoted in the press as making some comparison between our concern with fish and our concern with American citizens. I have not had the opportunity to read your opinion. Would you explain that?

Mr. BRADFORD. The quote was a slight truncation of the actual sentence in the opinion, but I think basically it captured it.

The Commission decision was, in the Philippine case, that as a matter of exercise of Commission discretion it would evaluate the impact of the reactor on the global commons, which in this case meant the seas and everything in the seas more than 12 miles off the Philippine coast but that it would not as a matter of discretion evaluate any potential impact of the reactors on U.S. citizens at the Clark and Subic bases, which means roughly 30,000 citizens within 30 miles.

It seemed to me to be an odd use of the Commission's discretion to review the impact on the fish more than 12 miles off the coast while declining to review the impact on U.S. citizens living a comparable distance away.

Mr. BINGHAM. Do you want to comment on that, Mr. Chairman? Mr. AHEARNE. Mr. Bingham, since I joined Mr. Bradford in dissenting from the Commission's position on the reach, I would not have used the analogy but I did believe that we ought to have examined the particular case since I felt that U.S. interests were very directly affected.

Mr. BINGHAM. Perhaps you ought to explain the precise area of your disagreement with the Commission finding.

Mr. AHEARNE. My testimony, Mr. Bingham, is the Commission's testimony. I am a spokesman for the agency, so I have given you the collegial testimony which reflects the Commission's position.

Mr. BINGHAM. I understand that. Would you then perhaps elaborate on your dissent.

Mr. AHEARNE. My dissent was really based on, first, since we are a regulatory agency we do obviously have to examine the statutes under which we operate, and the legal analysis that underlies the Commission's decision. I do agree that we do not have the legal authority to go into a recipient nation and examine the health and safety effects in that recipient nation.

However, as the legal analysis ended up pointing out, the statutes are ambiguous as to how we may evaluate the effects upon U.S. interests. So, therefore, the extent of the evaluation, the determination of what U.S. interests might be in that case, is a policy question.

Where I come down on that policy is that in a particular case, for example here where you have a large institutionalized long-term presence which those two bases represent, then it would seem to me that then the examination should reach the health and safety effects in

that particular case. That is why I dissented in the reach of where the Commission came out.

The position, as reflected in the testimony, though, is the Commission's position.

Mr. BINGHAM. Do you want to comment on that?

WHO SHOULD ASSESS IMPACTS ON U.S. INTERESTS

Mr. GILINSKY. I would be glad to. It isn't that we are declining to look at the question of the safety of Americans; it is that we are saying we are not going to make a formal finding on this question as a requirement for a license. If the Department of Defense, which after all is responsible for that base, or the Department of State, asked us to look into the questions of the safety of the surrounding area and the persons in the surrounding area, we would certainly do that. There is no question about it.

Mr. BINGHAM. They have not done that?

Mr. GILINSKY. They have not done that.

Mr. BRADFORD. They did urge a limited review.

Mr. GILINSKY. I am not aware of any specific requests on their part.

Now, I suggest in fact in my brief comment on the subject that it would be wise for the Department of Defense to look into the questions of public protection at that base and we certainly would cooperate in any such look at the subject.

What it comes down to is whether we should involve our formal regulatory apparatus and make a formal finding on the safety of that plant. If you do that, you are going to have to ask what standards you are going to apply.

I do not see what standards we could apply other than U.S. standards. If you are going to apply U.S. standards, it is hard to see how you can do that without conducting a review which is essentially equivalent to a domestic review, which as a practical matter you simply cannot do.

On the other hand, if you were asked for your advice by another department of the Government, you can do that on a best effort basis. There is no problem about that. It is a much more flexible vehicle for our involvement and it can be suited to the nature of the problem or the interest of the other department. This is much more difficult to do if we actually set up a definite requirement that the Commission make a finding.

Mr. BINGHAM. Are you suggesting that the Department of Defense did ask for some such review, Mr. Bradford?

Mr. BRADFORD. It was actually the Department of State filing, but it was on behalf of the executive branch. including the Department of Defense, and they did suggest an NRC review of the volcanic and seismic risks posed by the reactor to the military base, and thus to the common defense and security.

In fairness, it was to be a narrow review, and I think they were essentially recommending a review of the assessment that the executive branch had itself prepared. I am not sure how far they were prepared to see us go. but I did not want to leave you with the impression that they had not invited an NRC review in this case.

Mr. BINGHAM. What did the Commission do in response to that? Mr. BRADFORD. It declined to undertake such a review.

Mr. BINGHAM. As a part of this decision?

Mr. BRADFORD. Well, let's see. I am not sure whether it is right to say that it was a part of the jurisdictional part of this decision or as a part of the decision on the Philippine export license, but the net result was that it did not undertake the review.

Mr. BINGHAM. When was that decision made?

STATEMENT OF HON. JOSEPH M. HENDRIE, COMMISSIONER, NUCLEAR REGULATORY COMMISSION

Mr. HENDRIE. Mr. Bingham, my understanding is that the Defense Department's views were reflected in the State Department's comments, which said that they felt we had the discretion to undertake a look at the volcano and so on, and in fact there was some NRC staff expert involvement in looking at various things that had been submitted.

So it is not so clear to me that (a) there was a clear request from the Department of Defense that we consider the site in question and (b) it is not clear to me that we did not participate, at least in a rather limited way, in reviewing reports about the site and so on.

Mr. BINGHAM. Can you submit then for the record whatever it was that was submitted to you by the State Department on behalf of DOD and what response you made to that request?

Mr. HENDRIE. Certainly.1

Mr. AHEARNE. The decision of what would the Commission's role be insofar as the staff would be concerned, was made as a result of the first phase of this process. We had, since we looked at this Philippine issue, a two-phase process; the first phase being what was the reach and the second phase being the licenses themselves.

We did have a Commission discussion meeting about the end of January, which then essentially lead to advice to the staff as a result of that meeting, on what kind of analysis they should do, which was then reflected in the order that has been issued.

NATURE OF INFORMATION EXCHANGE

Mr. BINGHAM. What does the Commission generally do with respect. to requests for information? Before there is any formal request for a license made, would you respond to an informal request from a country with regard to the advisability of establishing a power reactor at a certain site? Would that be a natural thing for the NRC to do or not?

Mr. HENDRIE. We have, Mr. Bingham, to the extent that if a local jurisdiction writes us and asks some questions and people on the staff are familiar enough with the area to make a meaningful response, why we will always try to answer and provide what we know.

Now, if the job would involve commitment of staff resources and people working on a problem to do analysis or go out and make an examination, or whatever, I am inclined to think we would be reluc

1 The views submitted by the State Department on behalf of the Executive Branch appear in app. 5, p. 214. The response of the Commission is set forth in the opinions of the Commissioners issued May 6, 1980, which appear in app. 3, p. 140.