At the Crossroads of the Plutonium Economy

Charlotte R. Bell

Ms. Bell is a 1977 Summer Scholar at the Environmental Law Reporter. Third-year student, Martin Luther King, Jr. School of Law, University of California, Davis; B.A. 1975, Stanford University.

[7 ELR 50083]

Reprocessing of nuclear materials to obtain plutonium will soon become a commercial reality. Plutonium, not found naturally on the earth but produced by the fission of uranium, is extremely toxic to both humans and the environment and is a basic component of nuclear weapons. Yet the element is a potent source of energy and is a fuel of both the light water reactor and of the planned breeder reactor, which will generate more plutonium than it uses. Whether the benefits of an energy economy based on plutonium use are worth the risks is a major question facing the world community, Many nations, believing that plutonium-fueled power plants are the only answer to their electricity supply problems, seem to be willing to gamble with plutonium's dangers.

The United States is in a critical position with regard to the plutonium economy. As a major supplier of uranium, the element from which plutonium can be extracted, the United States may be able to influence world energy policies for years to come. But the issue is delicate, and even a carefully made decision to limit trade in nuclear materials could harm United States foreign relations and work against the nation's hopes to prevent the proliferation of nuclear weapons.

The federal agencies concerned with nuclear exports have over the years encouraged nuclear development and plutonium use.The Energy Research and Development Administration (ERDA), the agency which, until the creation of the Department of Energy in 1977,¹ was responsible for approving foreign retransfers (transfer of materials between nations after the original export) for reprocessing of nuclear material of United States origin to obtain plutonium, has approved retransfer applications with insufficient regard for the proliferation risks associated with the transactions. The looseness of ERDA's procedures prompted several environmental groups to petition the agency in the spring of 1977 requesting it to promulgate rules to regularize the approval process.

In April, President Carter announced a strong United States anti-proliferation policy, and Congress has been considering legislation to clarify nuclear export procedures. Since that time, ERDA appears to have been more cautious in its nuclear export activities, but has not yet promulgated regulations. Nevertheless, the groundwork has been laid for public scrutiny of plutonium use.

The Plutonium Economy

Plutonium, first isolated in 1941,² is an unstable element that emits radiation. It has been known for 50 years that radiation can cause damage to body cells by breaking the strands of DNA and destroying or altering the information which they contain.³

The result can be immediate injury to vital tissues, death, delayed development of cancerous cells, or permanent genetic effects. The health risks of a radioactive element depend on its chances for release into the environment and its mode of intake. The largest danger from plutonium is through inhalation of small particles of the element which then become embedded in the respiratory tract or transported by the blood or lymphatic vessels to other cells of the body.⁴ Plutonium-239, the most common form of the element, has a half-life of 24,400 years. Thus, any contamination is essentially permanent and any release of the element into the atmosphere would have longlasting effects.

In addition to its severe health consequences, plutonium is one of the two elements that can be used to create a nuclear explosion and, hence, nuclear weapons. Within four years of the discovery of the element, the United States had built and tested an atomic bomb made from plutonium and had demonstrated its destructive capabilities in World War II.

Despite the potential for human and environmental harm inherent in the use of radioactive elements, nuclear research, both peaceful and military, has continued unabated since the 1950s. Because nuclear fission promised a clean, efficient, and inexpensive energy source to augment fossil fuels, development of nuclear power plants was given the highest priority.⁵ By the 1960s, the light-water reactor (LWR), which primarily uses uranium, had achieved commercial status.⁶ By May of 1977, 64 commercial nuclear power plants were operating in the United States.⁷

Considerable controversy exists over the safety of nuclear power plants — their vulnerability to sabotage, human error, technical failures, and acts of God — and over disposal of the radioactive waste material produced at the "back end" of the nuclear fuel cycle.⁸ Presently, the used fuel rods are stored in thick-walled water pools [7 ELR 50084] at the reactor sites.⁹ This storage method was intended only to hold the waste temporarily; more permanent solutions have not been instituted because of the assumption that the spent fuel would be reprocessed and used. Waste storage presents difficult institutional and technical problems, however. Since the burned fuel, containing radioactive elements including plutonium, remains dangerous for thousands of years, the wastes must be effectively isolated, guarded, and monitored for radiation leaks for many generations. Some critics argue that human society inherently lacks the social stability and responsibility necessary to maintain permanent safety measures.¹⁰

A process which some hoped would partially solve this problem of waste storage was on the verge of becoming a commercial reality until public and governmental concern about plutonium use called it into doubt. This process contemplated chemically reprocessing the spent LWR fuel in order to extract the plutonium which it contains for commercial power generation in existing LWRs and in a new reactor, the Liquid Metal Fast Breeder Reactor (LMFBR). Because such technology uses plutonium which otherwise would be waste, nuclear power proponents often assume that the volume of nuclear wastes would be reduced and that the most lethal element, plutonium, would be used beneficially.¹¹ The reduction in waste which would actually result, if any, however, is small and reprocessing has the added danger of producing higher concentrations of radioactive waste materials which are as lethal as plutonium.¹² Moreover, past storage facilities for reprocessing wastes have proven unsuccessful in preventing radioactive leaks,¹³ and present storage methods are yet untested.¹⁴

Not only does plutonium pose severe health and environmental risks, but development of the capability to isolate the element complicates efforts to control the spread of nuclear weapons.¹⁵ Since plutonium is an essential component of nuclear explosives, countries with the technology and materials to generate nuclear power from the substance would also have the tools to create nuclear weapons — a capability which, some argue, could quickly and easily be activated in a crisis.¹⁶ Others, however, scoff at the notion of "overnight" nuclear weapons capability,¹⁷ maintaining that development of a nuclear bomb is prohibitively expensive and would require a degree of technical sophistication which a non-nuclear country would likely not have.

Those concerned about proliferation also argue that as more nations achieve nuclear weapons capabilities or near-weapons technology, their neighbors or their political rivals will follow in a chain reaction. They believe that widespread acceptance and use of plutonium would create international instability and increase the risk of nuclear war.¹⁸

Nations are not the only conceivable agents of proliferation. As the use of plutonium increases, the possibility of theft of nuclear material by terrorists, criminal groups, and revolutionary or military power seekers becomes more likely.¹⁹

Despite the many unsettled questions, several nations, dependent on imported fuel for their energy needs and wishing to increase their energy self-sufficiency as quickly as possible, believe that plutonium use is necessary and are concentrating on the development of reprocessing plants.²⁰ That plutonium fueled reactors and reporcessing facilities are symbols of technological world status is an additional incentive to non-nuclear nations to acquire the technology.²¹

Nonproliferation Treaty

To deal with the danger of proliferation of nuclear weapons, a network of international agreements and safeguards has been created. The Treaty on the Non-Proliferation of Nuclear Weapons (NPT)²² imposes inspection and monitoring safeguards, established and [7 ELR 50085] administered by the International Atomic Energy Agency (IAEA), on all nuclear activities within signatory states and prohibits the military use of nuclear technology and material. The treaty does not, however, preclude use of nuclear energy for peaceful purposes and does not prevent those states without nuclear weapons from coming dangerously close to developing their own weapons by stockpiling plutonium and other materials obtained for peaceful purposes. Unfortunately, not all nations have signed the treaty²³ and the agreement has a provision which allows a state to withdraw from it.²⁴ Although the NPT is imperfect, it nevertheless expresses international anti-proliferation sentiment.

At the present time, the anti-proliferation stance of the NPT is being tested. As more nations acquire the technology for peaceful nuclear energy facilities and the capability to produce nuclear explosives, other countries will be under pressure to follow suit. Although signatory nations have at present adhered to the treaty, non-weapons parties may feel the need to withdraw from it in the future. Moreover, nations not now party to the NPT may be disinclined to join it. Consequently, the current world anti-proliferation sentiment which the NPT expresses may be threatened.

To assure continued adherence to the ideal of world nonproliferation, some commentators assert that the treaty's provisions should contain stricter safeguards on the transfer, reprocessing, and use of nuclear materials, and should provide for sanctions for treaty breach.²⁵ However, measures so strict that they threaten the energy future of developing countries might create even greater international instability.

Carter's Anti-Proliferation Policy

Despite the NPT and the recognized link between nuclear weapons and peaceful nuclear power capability, United States nuclear energy policy has been geared to the development of plutonium technology.²⁶ Recently, however, the focus has changed. In his nuclear power remarks of April 7, 1977, President Carter announced that the United States would indefinitely defer both the commercial reprocessing of plutonium and breeder development.²⁷ He also recommended incentives to encourage other nations to forego plutonium use and advocated a strengthened embargo on the export of equipment or technology which would permit other countries to build plutonium facilities.

Although the President stressed that the United States was not trying to impose its will on those nations which already have reprocessing capabilities, many countries have denounced his policy as doing just that.²⁸ Some nuclear-supplier countries feel that Carter's plan would effectively kill their plans to import the spent fuel of other nations to provide international reprocessing services and cost them hundreds of millions of dollars. Nuclear export-recipient nations consider that the comparatively resource-rich United States, which initially encouraged their nuclear programs and supplied technology and materials, is imposing, at no expense to itself, a sacrifice on less resource-rich nations by asking them to forgo what they see as their only real opportunity for energy self sufficiency.²⁹ Several countries have announced their intentions to continue their nuclear plans despite Carter's announcement.³⁰

President Carter's nonproliferation proposals are wisely concerned with protecting human health and the environment, but they may jeopardize the United States' leadership in the nuclear field.³¹ Because the President advocates imposing conditions on nuclear fuel and materials export, his policy may cause nations to question the United States' reliability as a nuclear fuel supplier and to resent this country's interference with their energy programs.

Carter's remarks on plutonium use have drawn some criticism at home as well because of the belief that foregoing reprocessing will result in difficult waste management problems,³² will curtail valuable commercial activity, and will deprive the United States of a potentially limitless energy source. However, the President's decision to halt plutonium use and to encourage others to follow suit has substantial support both here and abroad because many feel that the technology [7 ELR 50086] creates more problems than it solves and is not worth the risks.³³

United States Institutional Framework

Although President Carter strongly advocates anti-proliferation, the past actions of the United States energy agencies have consistently encouraged nuclear development and plutonium use. Under the Atomic Energy Commission (AEC), which until 1974 had nearly exclusive control over nuclear energy decisions,³⁴ nuclear energy programs were isolated from other domestic and international energy considerations. The federal government's emphasis on nuclear energy, through the AEC, foreclosed early exploration of alternative energy sources.³⁵

The AEC was abolished in 1974 by the Energy Reorganization Act.³⁶ In its place, the Nuclear Regulatory Commission (NRC) was created to deal with the regulatory aspects of nuclear power³⁷ and the Energy Research and Development Administration (ERDA) was established to supervise all energy research and development.³⁸ Although the NRC is responsible for initial licensing of exports of nuclear material and equipment,³⁹ ERDA has assumed the authority to approve or disapprove subsequent retransfers and reprocessing of United States nuclear fuel pursuant to agreements for cooperation⁴⁰ negotiated between the United States and its nuclear fuel customers.⁴¹

Under its current procedures, ERDA may approve retransfer and reprocessing requests if five criteria are met.⁴² There must be an agreement for cooperation between the United States and the recipient country; the recipient must specify that the transferred material will have an acceptable end use; the recipient country must have adequate physical security measures; there must be no political difficulties with the recipient nation; and private recipients must have the authority from their governments to possess and use and material. The criteria provide little guidance, however, because the procedures do not define an "acceptable end use" nor do they explain "adequate" security measures. Moreover, there is no clarification of what sort of "political difficulties" would prevent approval. Nowhere do the criteria require a determination of the health, environmental, or proliferation risks of retransfer and reprocessing approval. Finally, ERDA's criteria have not been modified to reflect Carter's anti-proliferation position.

Recent action taken pursuant to three agreements for cooperation illustrates the nature and scope of ERDA's authority.⁴³ In 1976, Switzerland, Spain, and Japan each requested approval from ERDA to retransfer spent fuel of United States origin to the European Atomic Energy Community (EURATOM) for eventual reprocessing.⁴⁴ ERDA approved all three requests on December 30.⁴⁵ The publicly available ERDA files for the three requests contained little or no background information, and failed to elaborate on the five required criteria. According to one observer, the nations claimed that immediate retransfer of their spent fuel was urgent to avoid shutdown of their nuclear power plants.⁴⁶ The public record does not reveal that ERDA made any effortto verify these allegations. Rather, ERDA seems to have accepted the requests pro forma.⁴⁷

Another question posed by ERDA's approvals is that the agency did not clearly indicate whether it was approving retransfer of nuclear materials only or approving reprocessing as well. Although the requests specify retransfer for the purpose of reprocessing, the approval letters fail to make the distinction. Since the three agreements for cooperation all require some additional joint determination between the involved countries before any reprocessing can take place and no such determination was mentioned in the letters, it is uncertain whether reprocessing was properly authorized.⁴⁸

[7 ELR 50087]

Legislative Action

The incongruity between President Carter's nonproliferation policy and past United States nuclear activity has, in part, caused Congress to reassess nuclear energy policy. In the first place, Congress has been debating whether to fund construction of the controversial Clinch River Breeder Reactor, which would launch the United States into plutonium reprocessing and use.⁴⁹ Critics fear that use of the element in the United States will not only entail serious risks to the environment but also jeopardize the credibility of the President's plea for international nonproliferation cooperation.⁵⁰ Others feel that the United States cannot successfully hope to curb nuclear proliferation unless it proceeds with the breeder and maintains a leadership role.⁵¹ Congress has vacillated on the funding of the project,⁵² and construction of the breeder has been defeated, at least temporarily, in light of President Carter's strong opposition to plutonium use.⁵³ The controversy surrounding the Clinch River plant is likely to continue, however.

The second area of legislative activity involves United States nuclear policy abroad. Bills have been introduced into both the House and the Senate proposing clarification of United States policy regarding nuclear nonproliferation,⁵⁴ and legislation is expected to be passed by Congress this year.⁵⁵

The basic premise of the bills is that nuclear power should be available to meet legitimate energy needs but that the proliferation of nuclear explosive capabilities must be avoided in the process. Although all interest groups favor a clarified nonproliferation policy, there is dispute over how such a policy should be expressed and implemented.

As of Congress' August recess, the proposed legislation emphasized essentially three things: establishment of criteria for United States export of nuclear materials and equipment, imposition of conditions on subsequent retransfers of material, and fuel assurances. Although the proponents of the various bills seem to be reaching accord on the controversial provisions, the subject of nuclear energy is still volatile and the final law could contain substantial changes.

First, the export licensing criteria which the bills propose can be divided into two parts. Phase I criteria are those which must be met immediately by all recipient countries. All United States supplised or derived material or equipment must be protected by IAEA safeguards and by adequate physical security measures; nations wishing to retransfer or reprocess nuclear fuel must obtain prior United States approval; recipient nations may not detonate any nuclear explosive, including peaceful ones (PNE); and the United States may not export sensitive nuclear technology unless the criteria are applied to material which the importing nations produce as well. These criteria are already contained in most of the agreements for cooperation; the legislation would simply codify them.

The bills propose that all current agreements for cooperation be renegotiated by the Secretary of State as soon as possible to clarify the safeguards requirements and the prohibition on PNEs. The State Department favors leaving the renegotiation up to diplomatic discretion, feeling that sensitive foreign relations demand flexibility.⁵⁶ Others believe that definite timetables for establishing nonproliferation criteria and stringent sanctions must be established in order to effect any meaningful change.⁵⁷

The bills would require that all new agreements for cooperation contain perpetual safeguards and physical security measures, agreements not to conduct any nuclear explosive research or development activities, and prohibitions on retransfer or reprocessing without United States approval. Most important, the bills contain a provision which would terminate United States supply of nuclear material if the recipient nation detonated any nuclear explosive device, including a PNE, materially breached any part of an agreement for cooperation, or violated an IAEA safeguard. The President would retain the power to override this sanction, however.

Eighteen months after enactment of the legislation, stricter criteria would come into play. Recipient nations would be required to adhere to comprehensive safeguards on all nuclear activities, not just those using United States-supplied materials and equipment. Although the President could waive this requirement, subject to review by Congress, the inclusion in the legislation of conditions on the use of materials which the United States did not supply would represent a significant change in this [7 ELR 50088] country's policy. Such a requirement amounts to a de facto nuclear nonproliferation treaty.

Second, the bills require that before ERDA could approve a request for retransfer or reprocessing of nuclear fuel, it must determine that the transaction would take place under conditions that would assure "timely warning" of any diversion of the fuel. Such a provision, if effectively implemented, would help solve the problem of proliferation, but would not prevent the health and environmental dangers of plutonium use.

Third, the bills discuss fuel supply assurances. Since the United States is one of the major suppliers of uranium used for fueling LWRs, in order to convince nations to forego development of plutonium reprocessing and breeding facilities the United States must guarantee that it will continue to supply uranium to other nations. The bills call for a statement of intent from the United States that it will be a reliable supplier and that it will continue to issue export licenses. Fuel supplies cannot be completely guaranteed, however, if strict export criteria are implemented and enforced. To ask a country to forego reprocessing in order to be assured of uranium and then require it to comply with strict and possibly difficult legislatively imposed conditions in order to get the fuel is sure to cause resentment from recipient nations.

The Administration and Congress seem to have reached some compromise on the proposed bills. The Administration opposes strict and absolute criteria, fearing that their implementation would force a moratorium on nuclear exports.⁵⁸ It maintains that United States world nonproliferation goals could be adversely affected since recipient countries and other nuclear suppliers might be alienated by the imposition of strict criteria and might view the United States as acting in its own economic interest to the detriment of less resource-rich nations. Proponents of stricter controls, however, believe that clear time-limited criteria will strengthen, rather than weaken, the United States' negotiating posture by clarifying and defining its nuclear policy.⁵⁹

The legislation promises to clarify and codify certain aspects of the United States nuclear policy. Whether the provisions relating to ERDA's procedures will be strong enough to effect a meaningful change in the agencies' procedures is uncertain.

Petition for Rulemaking to ERDA

Congress is not the only group considering the problems of plutonium use. Because of the dangers inherent in the agency's casual approval proceedings, the Natural Resources Defense Council (NRDC) and other international environmental groups⁶⁰ submitted a petition for rulemaking to ERDA asking the agency to adopt regulations relating to its approvals for foreign retransfer or reprocessing of nuclear materials from the United States. In petitioners' view, these regulations should define the required scope and contents of the request form; ensure public notice, access to ERDA's records, and opportunity for public comment; compel ERDA to consider alternatives and proliferation risks in approving the requests; and require ERDA to prepare a detailed proliferation assessment statement.⁶¹ Petitioners also request that ERDA rescind the three December 1976 approvals, suspend all pending requests for approval, and issue no further approvals until regulations have been promulgated.⁶²

Although present law does not explicitly require the agency to promulgate more thorough regulations, the petition points out the reasons for ERDA to do so. The agency's authorizing legislation, the Energy Reorganization Act of 1974, specifies that ERDA was created "to advance the goals of restoring, protecting, and enhancing environmental quality, and to assure public health and safety."⁶³ Furthermore, the National Environmental Policy Act (NEPA) states that federal agencies must perform their functions in such a way as to avoid environmental degradation or risk to health and safety⁶⁴ and must "recognize the world wide and long range character of environmental problems and … [anticipate and prevent] a decline in the quality of mankind's world environment."⁶⁵ NEPA also requires consideration of alternatives and encourages public involvement in federal agency processes.⁶⁶ These statutes indicate that Congress intended ERDA to consider the environmental and health threats of plutonium and nuclear proliferation in its retransfer and reprocessing approvals, to recognize alternatives to plutonium use, and to allow for public input into its decisions. Clear and detailed regulations are necessary, NRDC asserts, to assure that ERDA meets Congress' intentions and to regularize its approval process.

Although the proposed legislation, if enacted, will clarify the United States nuclear export policy, NRDC's petition has more potential to bring about meaningful change in ERDA's retransfer and reprocessing approval procedures. As yet, however, ERDA has not responded to the petition and has not attempted to promulgate regulations. The agency's reluctance to bring its activities into step with President Carter's nonproliferation policy and Congress' intent is curious. Such reluctance may hurt the United States world leadership position, encourages [7 ELR 50089] danger to public health and the environment, and will probably foster unnecessary litigation.

Conclusion

The success of United States efforts to protect the world environment against the threat of the plutonium economy will be affected by its management of domestic nuclear resources and plutonium reprocessing plans, its nuclear export criteria and procedures, and its policies regarding foreign retransfer of nuclear fuel for reprocessing. The nation is at a crossroads, but the roadsigns point both ways. If it accepts the trend toward plutonium use, continues to develop nuclear technology, and strives to become the world energy leader and maintain that position, the United States might be able to influence the world as it has been able to do in the past: by being the biggest and the best in a new technological area. World political climate has changed, however, and other nations, particularly developing countries, have become less willing to follow the United States lead. By accepting the plutonium economy, the United States could undermine the credibility of its nonproliferation policy. Such a choice would also unrealistically discount the dangers of plutonium to the human environment.

Another alternative open to the United States is to reject plutonium use altogether and to impose conditions and sanctions on the export and retransfer of nuclear materials. Strict conditions might be seen as an attempt to coerce the rest of the world to forego plutonium as well. Although such a path would be consonant with President Carter's anti-plutonium stance, it would risk the United States leadership position in world energy technology, forcing recipient nations to turn to other nuclear suppliers for their energy needs.

Neither of these alternatives is entirely satisfactory. The United States must balance both the long-term, serious dangers to human health and the environment which reprocessing of nuclear fuel for plutonium creates and the world needs for an efficient energy source in making its decision whether to embrace the plutonium economy. A third route which the United States could take to discourage plutonium use here and abroad might establish a better balance between these two considerations — to concentrate on developing and aiding other countries in developing alternative energy sources. This country has the resources and technology to develop economically these new, less harmful means to produce energy and can use its knowledge to convince other countries that reprocessing and plutonium use are unwise. Offering feasible substitutes will ultimately be more effective in preventing a world plutonium economy than causing countries to fear continued energy dependence.

1. On August 4, 1977, President Carter signed into being the new Department of Energy. Washington Post, Aug. 5, 1977, at A12, col. 3. All of ERDA's functions were transferred to the new department. The transfer itself, however, should not affect the agency's retransfer procedures.

2. R. MURRAY, NUCLEAR ENERGY 163 (1975).

3. NUCLEAR ENERGY POLICY STUDY GROUP (Ford Foundation), NUCLEAR POWER ISSUES AND CHOICES 162-87 (1977) [hereinafter cited as FORD REPORT]. Genetic disease has a great many manifestations. Among the mutations which can result are congenital cataract, cystic fibrosis, muscular dystrophy, hemophilia, Down's syndrome, birth defects, heart disorders, epilepsy, schizophrenia, asthma, and diabetes.

4. See also Geesaman, Plutonium and the Energy Decision, in THE ENERGY CRISIS 58 (1972).

5. FORD REPORT, supra note 3, at 337.

6. See also MURRAY, supra note 2, at 165-67.

7. COMPTROLLER GENERAL, UNITED STATES GENERAL ACCOUNTING OFFICE, CLEANING UP THE REMAINS OF NUCLEAR FACILITIES — A MULTIBILLION DOLLAR PROGRAM 4 (1977) [hereinafter cited as G.A.O. REPORT].

8. See Gofman, Time for a Moratorium, in THE CASE FOR A NUCLEAR MORATORIUM 3 (1973).

9. G.A.O. REPORT, supra note 7, at 7.

10. A. HAMMOND, W. METZ & T. MAUGH, ENERGY AND THE FUTURE 37; see also Weinberg, Social Institutions and Nuclear Energy, SCIENCE, July 7, 1972, at 27.

11. See MURRAY, supra note 2, at 146; see also M. WILLRICH, ENERGY AND WORLD POLITICS 49 (1975).

12. FORD REPORT, supra note 3, at 326; Americium, curium, and other longlived transuranics would be poresent in the reprocessing waste.

13. FORD REPORT, supra note 3, at 250-53.

14. Within the last five years, facilities have been devised which solidify the leak-prone liquid waste which results from reprocessing into pellets. These pellets are being stored in underground geological formations. Although such storage is safer than the previous aboveground tanks which held the liquid waste, there is still doubt as to the long-term safety of underground storage.

15. Former Secretary of State Kissinger termed the spread of reprocessing as "the greatest single danger of unrestrained nuclear proliferation." United States Mission to the United Nations, Press Release U.S.U.N.-99 (75) (Sept. 22, 1975).

16. See Wohlstetter, Moving Toward Life in a Nuclear Armed Crowd? (ACDA/PAB-263) (June 1976); see also Testimony of Denis Hayes, Worldwatch Institute, before the Subcomm. on Energy, Nuclear Proliferation and Federal Services of the Senate Comm. on Governmental Affairs, May 13, 1977.

17. Statement of Carl Walske, President of the Atomic Industrial Forum, Inc., before the Subcomm. on Energy, Nuclear Proliferation and Federal Services of the Senate Comm. on Governmental Affairs, May 11, 1977, at 4-8; Statement of Dr. J. A. Buckham, Allied-General Nuclear Services, before the Subcomm. on Energy, Nuclear Proliferation and Federal Services of the Senate Comm. on Governmental Affairs, May 11, 1977, at 10.

18. See FORD REPORT, supra note 3, at 294.

19. For example, there were 62 extortion attempts, bomb threats, or security breach incidents at United States commercial nuclear plants from January 1975 to September 30, 1976. Washington Post, Apr. 9, 1977, at A2, col. 1.

20. Commercial reprocessing facilities are now in operation or nearly operating at LaHague in France and Windscale in Britain. Japan, West Germany, and India also plan reprocessing plants. Congressional Research Service, Facts on Nuclear Non-Proliferation, 94th Cong., 1st Sess. 127 (Dec. 1975). Countries have contracted to sell or buy plutonium or breeder reactor services. E.g., Contract between the Bernische Kraftwerke AG and Staeg AG, executed June 30, 1975; FORD REPORT, supra note 3, at 294.

21. FORD REPORT, supra note 3, at 295.

22. 21 U.S.T. 483, T.I.A.S. No. 6839, 729 U.N.T.S. 161.

23. China, France, India, Spain, and South Africa, nations with nuclear-weapons capability, near-capability, or uranium supplies, have not signed the NPT. Also, Brazil, Israel, Argentina, North Korea, and Pakistan are developing nuclear programs and are not party to the treaty. FORD REPORT, supra note 3, 284. In 1974, India detonated a "peaceful" nuclear explosive built from materials supplied it by other nations for research purposes.

24. Article X of the NPT allows nations to withdraw from the treaty if their national interest so requires.

25. Statement of Lewis A. Dunn, Hudson Institute, before the Subcomm. on Energy, Nuclear Proliferation and Federal Services of the Senate Comm. on Government Affairs, Apr. 29, 1977.

26. Opening statement by Senator John Glenn, Chairman, Subcomm. on Energy, Nuclear Proliferation and Federal Services of the Senate Comm. on Governmental Affairs, at hearing on S. 897 and S. 1432, May 11, 1977.

27. President's Remarks Announcing His Decisions Following a Review of United States Policy, 13 WEEKLY COMP. OF PRES. DOC. 502 (Apr. 7, 1977).

28. Britain, Japan, U.S.S.R., W. Germany, France, Belgium, Sweden and the Netherlands objected to Carter's Policy. See Washington Post, Apr. 2, 1977, at A10, col. 4; May 3, 1977, at A14, col. 1; May 10, 1977, at A12, col. 1; May 21, 1977, at A9, col. 5; July 16, 1977, at A10, col. 4.

29. See Editorial, Not for the children, THE ECONOMIST, Apr. 16, 1977, at 9; accord Walske, supra note 17, at 2-4.

30. France announced on July 13 that it will buy uranium from South Africa, Washington Post, July 14, 1977; Canada is on the verge of resuming uranium shipments to the European Common Market and allowing reprocessing, Washington Post, July 13, 1977; the European Economic Community intends to push for urgent development of fast breeder and reprocessing technology, Washington Post, July 16, 1977.

31. See Walske, supra note 17, at 3; contra, e.g., Testimony of S. Jacob Scherr, on behalf of the Union of Concerned Scientists and the Natural Resources Defense Council before the Subcomm. on International Economic Policy and Trade of the House Comm. on International Relations, Apr. 4, 1977, at 4.

32. Robert Fri of ERDA and Sen. John Glenn expressed concern over waste accumulation. See Washington Post, Apr. 19, 1977, at A2, col. 1.

33. FORD REPORT, supra note 3, at 20.

34. Atomic Energy Act of 1954, 7 U.S.C. § 2011 et seq.

35. See FORD REPORT, supra note 3, at 26.

36. Energy Reorganization Act of 1974, § 104, 42 U.S.C. § 5814.

37. Id. §§ 201-209, 42 U.S.C. §§ 5841-5849.

38. Id. §§ 101-110, 42 U.S.C. §§ 5811-5820.

39. For a discussion of the controversy surrounding NRC's export licensing program see Comment, Environmentalists Attack NRC's Nuclear Fuel Export Licensing, 6 ELR 10190 (1976).

40. Atomic Energy Act of 1954, § 123, 42 U.S.C. § 2153. While the Energy Reorganization Act, supra note 36, does not explicitly give ERDA authority to administer Agreements for Cooperation, it has generally been interpreted by the Executive Branch to do so. See, e.g., Letter of Douglas J. Bennet, Jr., Department of State, to Representative Jonathan B. Bingham, Chairman of the Subcomm. on International Economic Policy, of the House Comm. on International Relations, Mar. 30, 1977, at 1.

41. From 1961 to 1974, approximately 575 transfers of United States-supplied nuclear materials between foreign countries were approved. GENERAL ACCOUNTING OFFICE, ASSESSMENT OF UNITED STATES AND INTERNATIONAL CONTROLS OVER THE PEACEFUL USES OF NUCLEAR ENERGY 53 (Sept. 14, 1976).

42. ERDA's five criteria evolved over the years within the agency and are of an internal nature. Letter of Douglas J. Bennet, Jr., supra note 40, at 7.

43. Agreement for Cooperation for Civil Uses of Atomic Energy, Dec. 30, 1965, United States — Switzerland, 17 U.S.T. 1004, T.I.A.S. No. 6059, as amended Nov. 2, 1973, 25 U.S.T. 19, T.I.A.S. No. 7773; Agreement for Cooperation for Civil Uses of Atomic Energy, Mar. 20, 1974, United States — Spain, 25 U.S.T. 1063, T.I.A.S. No. 7841; Agreement for Cooperation for Civil Uses of Atomic Energy, Feb. 26, 1968, United States — Japan, 19 U.S.T. 5214, T.I.A.S. No. 6517, as amended Feb. 24, 1973, 23 U.S.T. 275, T.I.A.S. No. 7306, and Mar. 28, 1973, 24 U.S.T. 2323, T.I.A.S. No. 7758.

44. RTD/EU(SD)-19, AG 1074/1 [Swiss request], RTD/EU(SP)-6, AG/1129 [Spanish request], RTD/EU(JA)-16, AG/1168 [Japanese request].

45. Letters from Nelson F. Sieverling, Jr., ERDA, to Ferdinand Spaak, Head of the Delegation of the Commission of the European Communities, Dec. 30, 1976.

46. The Center for Law and Social Policy and Natural Resources Defense Council obtained ERDA's files under the Freedom of Information Act and detailed their findings in their Petition for Rulemaking submitted to ERDA Mar. 9, 1977, at 23-29. [hereinafter cited as Rulemaking Petition]. (Petition available from ELR, 45 pp. $5.75, ELR Order No. A-1009.)

47. Testimony of Jacob Scherr, supra note 31, at 9.

48. It is interesting to note that from May 1971 through July 1974 there were 19 transfer violations. Rulemaking Petition, supra note 46, at 29; G.A.O. REPORT, supra note 7, at 53-54.

49. The Clinch River Breeder Reactor funding is included inthe ERDA authorization bills, H.R. 6796, 95th Cong., 1st Sess. (1977), S. 1811, 95th Cong., 1st Sess. (1977).

50. Testimony of Russell W. Peterson, President of New Directions, a citizens lobby on international issues, before the Subcomm. on Energy, Nuclear Proliferation, and Federal Services of the Senate Comm. on Governmental Affairs, May 11, 1977, at 4.

51. See, e.g., Statement of A.B. Trowbridge, Allied Chemical Co., before the Subcomm. on Energy, Nuclear Proliferation, and Federal Services of the Senate Comm. on Governmental Affairs, May 11, 1977, at 4.

52. See, e.g., Washington Post, July 12, 1977, at A1; Washington Post May 11, 1977, at A3, col. 4.

53. Washington Post, July 21, 1977, at A1, col. 1; Washington Post, July 24, 1977, at B6, col. 1; as of Congress' August 1977 recess, the funds for the Clinch River Breeder Reactor had been eliminated from consideration.

54. The Nuclear Antiproliferation Act, S. 897, 95th Cong., 1st Sess. (1977), H.R. 4409, 95th Cong., 1st Sess. (1977); H.R. 8638, 95th Cong., 1st Sess. (1977); the Nuclear Non-Proliferation Policy Act of 1977 [the Administration-supported bill], S. 1432, 95th Cong., 1st Sess. (1977), H.R. 6910, 95th Cong., 1st Sess. (1977).

55. Opening statement by Sen. John Glenn, Chairman of Subcomm. on Energy, Nuclear Proliferation and Federal Services of Senate Comm. on Governmental Affairs, May 11, 1977.

56. Statement of Joseph S. Nye, Jr., Department of State, before the Subcomm. on Energy, Nuclear Proliferation and Federal Services of the Senate Comm. on Governmental Affairs, May 6, 1977, at 18.

57. See Testimony of Eldon V. C. Greenberg, on behalf of the Natural Resources Defense Council, before the Joint Subcomm. of the House International Relations Comm., May 19, 1977, at 3.

58. Nye, supra note 56; see also testimony of Joseph R. Dietrich, American Nuclear Society, before the Subcomm. on Energy, Nuclear Proliferation and Federal Services of the Senate Comm. on Governmental Affairs, May 11, 1977, at 5.

59. Greenberg, supra note 57.

60. Union of Concerned Scientists (United States), Friends of the Earth (United Kingdom), and Les Amis de la Terre (France) joined NRDC's petition for rulemaking. The Center for Law and Social Policy (United States) aided in preparation of the petition.

61. Rulemaking Petition, supra note 46.

62. Petitioners claim that ERDA is required to determine, before approving retransfer or reprocessing, that the transaction is consistent with the common defense and security and the health and safety of the public within the meaning of the Atomic Energy Act.

63. Energy Reorganization Act of 1974, supra note 36, § 2, 42 U.S.C. § 5801.

64. National Environmental Policy Act § 101(b)(3), 42 U.S.C. § 4331(b)(3), ELR 41009.

65. Id. § 102(2)(F), 42 U.S.C. § 4332(2)(F), ELR 41010.

66. Id. §§ 102(2)(E), (2)(C), 42 U.S.C. §§ 4332(2)(E), (2)(C), ELR 41010.