tant Director for Exports-Imports and International Safeguards to issue said license to the Edlow International Company.

In view of the ongoing development of Indian reprocessing capacity at the Tarapur Atomic Power Station, the Commission intends in the forthcoming hearings to give careful consideration to the implications of the potential creation of national stockpiles of plutonium in India, and appropriate measures which might be taken in light of this possible development. . . .

In reaching its decision in the matter of License No. XSNM-805, the Commission has concluded that it would be desirable for the Department of State to explore with the Government of India steps which would provide for the repurchase by the United States of the irradiated fuel discharged from the Tarapur Atomic Power Station or any special nuclear material recovered therefrom. In connection with its consideration of License No. XSNM-845, the Commission intends to review progress in this matter.

Commissioner Victor Gilinsky dissented, expressing lack of confidence that genuinely effective safeguards would be applied to the plutonium produced in U.S.-supplied Tarapur fuel. He noted that although the majority opinion urged the State Department to explore repurchase of spent Tarapur fuel (or plutonium produced therefrom), it did not close the door to reprocessing of U.S. fuel in India. He stated that such reprocessing might well take place under traditional International Atomic Energy Agency safeguards, which in his opinion were inadequate by themselves once plutonium is separated from reactor fuel. He expressed the view that the issue should have been faced directly, in the context of the license, and said that he would have withheld approval until more positive assurances had been obtained. He added: "The need for effective safeguards over reprocessing and the subsequent storage of separated plutonium is particularly acute in this case given India's continuing nuclear explosives program and India's failure to renounce the use of such explosives as weapons through ratification of the NPT."

The petitioners having waived further objection to License No. XSNM-805, that license was issued on July 2, 1976.

As directed by the Commission, public hearings were held on July 20 and 21, 1976, on license application XSNM-845, Docket No. 70-2131. Petitioners, as well as other interested parties participated through oral or written statements and through the submission of written questions and rebuttal materials. Discovery under the Freedom of Information Act provided the evidentiary and informational background for the proceeding, and petitioners sought 21

categories of documents pursuant to the Act. The Department of State provided petitioners with access to numerous active files on nuclear exports to India and supplied answers to 117 specific questions. The Energy Research and Development Administration (ERDA) provided access to numerous documents, and the NRC made over 2,000 pages of documents available. The Commission took the matter under advisement.

On June 11, 1976, prior to their participation in the hearing, two of the three petitioners filed in the U.S. Court of Appeals for the District of Columbia a petition for review of the NRC opinion of May 7, 1976. Natural Resources Defense Council, Inc., and Union of Concerned Scientists v. U.S. Nuclear Regulatory Commission and the United States of America, No. 76-1525. The Sierra Club did not participate in the appeal. The issues before the Court were:

1. Whether the Court properly had jurisdiction to entertain the petition in the absence of either (1) a final order granting or denying the license or (2) facts supporting a claim that petitioners were "aggrieved" by the NRC's ruling allowing public participation in the export licensing process through a legislative-type hearing.

2. Whether the risk that special nuclear material exported for generating electric power in India might be diverted to weapons production and, as a result of intervening events, a nuclear explosion might occur which would expose members of petitioners' organizations to radiation generating cancer or genetic defects is sufficient to establish standing to intervene in an export licensing proceeding.

3. Whether under the Atomic Energy Act the NRC is required to hold an adjudicatory hearing rather than a legislative-type hearing in export licensing determinations which focus principally on foreign policy issues.

A brief for the Department of State, as respondent intervenor, was filed with the Court in October 1976. The Department's brief argued that the Court lacked jurisdiction to review the NRC's procedural decision of May 7, there being as yet no final order granting or denying the export license. Even if the May 7 decision was a final order, said the Department, the petitioners were not "aggrieved" within the meaning of the jurisdictional grant of 28 U.S.C. 2344. Second, the Department contended that the NRC had correctly determined that petitioners were without standing to intervene in the Tarapur export licensing proceeding, since their nuclear nonproliferation claim was a generalized grievance and could not serve as the basis for standing to challenge an export license. Moreover, it said, the speculative nature of petitioners' "injury" as well as the attenuated nexus between such injury and the granting of a license for the export of fuel to the Tarapur generator supports the NRC

decision to deny standing. Third, the Department maintained that the legislative-type hearing was an appropriate exercise of discretion by the NRC and would satisfy the statutory hearing requirement in § 189(a) of the Atomic Energy Act.

The brief was submitted by Assistant Attorney General Rex E. Lee, Deputy Assistant Attorney General Irwin Goldbloom, Special Assistant to the Assistant Attorney General Thomas S. Martin, and Sandra Schraibman, attorney, Civil Division, Department of Justice. Of counsel were Ronald J. Bettauer and Charles Siegal, attorneys, Department of State. The case had not been decided by the close of 1976.

The U.S. Nuclear Regulatory Commission (NRC), on June 21, 1976, issued its decision on the request for a license to export major components of a nuclear power plant to Spain. It was the NRC's first written decision on a nuclear export license application. The majority opinion in the Matter of the Application of Westinghouse Electric Corporation for the Export of Pressurized Water Reactor to Asociacion Nuclear ASCO II, Barcelona, Spain found that the license applied for met all the standards relevant for issuance under the Atomic Energy Act of 1954 (68 Stat. 919; 42 U.S.C. 2011 et seq.) and the Energy Reorganization Act of 1974 (88 Stat. 1233; 42 U.S.C. 5801 et seq.). It directed the Assistant Director for Exports-Imports and International Safeguards to issue the license to the Westinghouse Electric Corporation.

The NRC published a Federal Register notice of the Westinghouse application on April 15, 1974 (Fed. Reg., Vol. 39, No. 73, p. 13575) and requested from the Department of State the views of the executive branch on the matter. The Department of State, on August 21, 1975, replied that the proposed export would take place pursuant to the U.S.-Spain Agreement for Cooperation (TIAS 7841; 25 UST 7841) and that it would not be inimical to the common defense and security of the United States. Also noted was the existence of a trilateral agreement between the International Atomic Energy Agency (IAEA), Spain, and the United States (TIAS 6182, 7856; 17 UST 2351; 25 UST 1261) for the application of safeguards, and an amendment thereof (TIAS 6182, 7856; 17 UST 2351; 25 UST 1261). The NRC also considered materials related to a lawsuit entitled Sierra Club, et al. v. U.S. Atomic Energy Commission (U.S. D.C., D.C., Civil Action No. 1867-73); a letter from the Spanish Embassy in Washington, dated June 10, 1975, stating that the export would be subject to the conditions of the U.S.-Spain Agreement for Cooperation; and additional documentation from the executive branch.

In reaching its decision, the NRC considered four factors: (1) whether an agreement for cooperation would apply; (2) whether the applicant is a foreign or alien corporation; (3) whether the export

would be inimical to the common defense and security of the United States; and (4) whether the export would be inimical to the safety and health of the American people.

It found that (1) the proposed export would be covered by articles I(6), I(8), III(1), and VI(A) of the U.S.-Spain Agreement for Cooperation; (2) the Westinghouse Corporation is a company chartered in the United States, with corporate headquarters there and doing business there, and, to the NRC's knowledge, not owned, controlled, or dominated by an alien, a foreign corporation, or a foreign government; (3) in the view of the majority of the Commission, the export would not be inimical to the common defense and security of the United States, considering the existing safeguards; and (4) the Commission saw no circumstances in which the operation of the reactor to Spain would affect the health and safety of the U.S. population, noting, however, that foreign health and safety impacts are outside its jurisdiction.

A dissenting opinion by Commissioner Victor Gilinsky disagreed with the determination that the action was not inimical to the common defense and security of the United States. He expressed the view that "[t]he uncertainties surrounding the origin of the fuel to be used in the reactor and, consequently, the adequacy of the safeguards which will be applied to the reprocessing of such fuel, when considered against the background of Spain's failure to join the NPT [Non-Proliferation Treaty]-or, lacking that, to bring all its nuclear activities under international safeguards-preclude the required finding that the proposed export would not be inimical to the common defense and security."

For the text of the majority opinion and the dissent, see Cong. Rec., Vol. 122, No. 96, June 21, 1976, pp. S10043–51 (daily ed.); XV International Legal Materials 1029–1037.

On July 26, 1976, the Nuclear Regulatory Commission (NRC) requested the Department of State to consider the procedural issues raised by a petition for leave to intervene filed by 14 Members of Congress, five concerned organizations, and three concerned resident aliens in the Matter of U.S. Nuclear, Inc., on application for the export of special nuclear material to the Republic of South Africa.

Attorneys for the Department of State (Thomas S. Martin, Special Assistant to the Assistant Attorney General, Department of Justice, and Ronald J. Bettauer, Deputy Assistant Legal Adviser, Department of State) filed a response on August 6, 1976, stating the following conclusions:

(1) None of the petitioners is entitled to a hearing under section 189(a) of the Atomic Energy Act. The same criteria for determining standing apply to each of the petitioners.

(2) Public policy considerations militate against deciding to hold a discretionary, legislative-type hearing prior to the communication of the executive branch position on issuance of the proposed license.

(3) The jurisdiction of the Nuclear Regulatory Commission in regard to its export licensing functions is limited to considerations relevant to the common defense and security determination required by the Atomic Energy Act of 1954, as amended.

(4) The United Nations Charter provisions and the resolutions of the General Assembly and Security Council cited by petitioners do not provide a legal basis for their claim of standing to intervene in the current proceeding.

(5) There are no special factors which bear on the manner in which the Commission should treat the question of legal standing.

On the matter of standing of the Congresspersons, the Department of State response declared that issuance of the license would not impair the "effectiveness of the exercise of a specific power of the legislator," the only basis upon which Members of Congress can claim standing in their legislative capacities. Holtzman v. Schlesinger, 484 F.2d 1307 (1973); Harrington v. Schlesinger, 528 F.2d 455 (1975) (see the 1975 Digest, p. 886); Korioth v. Briscoe, 523 F.2d 1271 (1975).

As to those petitioners claiming to be aggrieved by South Africa's "denial to them of entry into South Africa or Namibia . . . or its refusal to adhere to its international legal obligations under the U.N. Charter," the Department stated that none of these gave the petitioners standing to intervene under section 189(a) of the Atomic Energy Act since these injuries are neither causally related to the proposed action, nor protected by the Atomic Energy Act. The Department argued that neither Diggs v. Dent, Civ. Action No. 74-1292 (D.C.C., May 14, 1975), appealed sub nom. Diggs v. Morton et al., No. 75-1775 (D.C. Cir., August 8, 1975), nor Diggs v. Schultz, 470 F.2d 461 (1972), cert. den. 411 U.S. 931 (1973), were sufficient basis for finding that petitioners had standing. Both cases, it stated, must be read in the light of two subsequent Supreme Court cases on the law of standing, Warth v. Seldin, 422 U.S. 490 (1975), and Eastern Kentucky Welfare Rights Organization v. Simon, 44 U.S.L.W. 4724 (June 1, 1976). The Department termed "unsupported" the petitioners' apparent belief that adverse action on the export license would result in a "new social and political order in South Africa" necessary to enable them to return to their homelands, or that denial of the license would induce South Africa to comply with its international legal obligations regarding Namibia. It reasoned that the petitioners could neither be harmed nor helped by the Commission action.

Resident alien petitioners and foreign organizations lacked stand