ML19208D256
| ML19208D256 | |
| Person / Time | |
|---|---|
| Issue date: | 02/02/1979 |
| From: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 7909280165 | |
| Download: ML19208D256 (87) | |
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7 NUCLEAR REGULATORY COMMISSION a
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August 24, 1979 OFFICE OF THE SECRETARY COMMISSION DETERMINATION REGARDING PUBLIC DISCLOSURE UNDER THE GOVERNMENT IN THE SUNSHINE ACT OF:
Discussion of the Merits in Tarapur Export License (XSNM-1222)
February 2,
1979 Pursuant to 10 CFR 9.108(c), the Commission has determined that the attached portions of the subject transcript should be released to the public at this time.
The remaining portions of the transcript are being withheld from public disclosure pursuant to 10 CFR 9.104, as noted below, until a further review, which the Commission anticipates will result in disclosure of further portions of the text, is completed:
Page/Line through Page/Line Exemption 19/19 19/22 10 CFR 9.104 (a) (1) 30/18 30/25 10 CFR 9.104 (a) (1) 31/1 31/12 10 CFR 9.104 (a) (1) 31/21 31/21 10 CFR 9.104 (a) (1) 32/5 32/12 10 CFR 9.10 4 (a) (1) 32/19 32/19 10 CFR 9.104 (a) (1) 32/21 32/25 10 CF R 9.104 (a) (1) 33/7 33/16 10 CFR 9.104 (a) (1) 34/10 34/12 10 CFR 9.10 4 (a ) (1) 34/17 34/18 10 CFR 9.104 (a) (1) 34/21 34/25 10 CFR 9.104 (a) (1) 35/3 35/6 10 CFR 9.10 4 (a ) (1) 35/18 35/25 10 CFR 9.104 (a) (1) 36/1 36/3 10 CFR 9.104 (a) (1) 36/15 36/16 10 CFR 9.10 4 ( a) (1) 36/18 36/19 10 CFR 9.104 (a) (1) 37/2 37/7 10 CFR 9.104 (a) fl) 37/11 37/25 10 CFR 9.10 4 ( a) (1) 38/l 38/10 10 CFR 9.10 4 ( a )- ( l )
39/7 39/8 10 CFR 9.10 4 ( a ) (1) 40/2 40/5 10 CFR 9.104 (a) (1) 42/16 42/21 10 CFR 9.10 4 ( a) (1) 43/4 43/5 10 CFR 9.10 4 ( a) (1) 43/7 43/9 10 CFR 9.104 ( a) (1) 43/20 43/21 10 CFR 9.104 ( a) (1) 50/15 50/16 10 CPR 9.104 (a) (1)
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e w Page/Line through Page/Line Exemption 55/10 55/19 10 CFR 9.lO4 (a) (1) 56/20 56/22 10 CFR 9.10 4 (a) (1) 57/1 57/2 10 CFR 9.10 4 (a) (1) 57/7 57/8 10 CFR 9.104 (a) (1) 57/14 57/18 10 CFR 9.lO4 (a) (1) 58/9 58/17 10 CFR :9. lO4 (a) (1) 59/18 59/25 10 CFR ?9.lO4 (a) (1) 60/1 60/14 10 CFR 59.lO4 (a) (1) 61/24 61/25 10 CFR 3.104 (a) (1) 62/1 62/7 10 CFR 9.lO4 (a) (1) 63/8 63/25 10 CFR 9.104 (a) (1) 64/1 64/25 10 CFR 9.104 (a) (1) 65/1 65/25 10 CFR 9.104 (a) (1) 66/1 66/8 66/25 10 CFR 94.104 (a) (1) 66/25 10 CFR 93.10 4 (a) (1) 67/1 67/19 10 CFR 94.10 4 (a) (1) 68/4 68/25 10 CFR 9'.10 4 ( a ) (1) 69/1 69/25 10 CFR S.104 (a) (1) 70/1 70/2 10 CFR 9.104 (a) (1) 71/21 71/25 10 CFR 9.lO4 (a) (1) 72/1 72/8 10 CFR 9.104 (a) (1) 77/16 77/25 10 CFR 9. lO4 (a) (1) 78/l 78/25 10 CFR 9. lO4 (a) (1) 79/1 9/25 10 CFR 9.104 (a) (1) 80/1 i
0/25 10 CFR 9,,104 (a) (1) 81/1 81/25 10 CFR 9.104 (a) (1) 82/1 82/8 10 CFR 9.104 (a) (1)
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3 NUCLEAR REGULATORY COMMISSION Ws s, u 4
DISCUSSION OF THE MERITS IN TARAPUR i
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EXPORT LICENSE (XSNM-1222)
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February 2, 1979 3
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Pages 1 - 84 a
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Prepared by:
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Office of the Secretary,
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UNITED STATES OF AMERICA s
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NUCLEAR REGULATORY COMMISSION 3
DISCUSSION OF MERITS IN TARAPUR EXPORT LICENSE (XSNM-1222)
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S JClosed to Public Attendance)
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Commissioner's Conference hoom 1717 H Street, N W.
s ngton, D.,C.
8 Friday, February 2, 1979 g
10 11 The Commission met, pursuant to notice, Joseph 2
Hendrie, Chairman of the Commission, presiding.
(9:40 a.m.)
14 PRESENT:
15 Chairman Hendrie Commissioner Gilinsky 16 Commissioner Kennedy Commissioner Bradford 17 Commissioner Ahearne 18 Also Present:
19 Mr. Gossick Mr. Chilk 20 Mr. Bickwit Mr. Shea Mr. Burnett Mr. Pedersen-22 Mr. Oplinger Ms. Becker 23 Mr. Shapar Mr. Sherr 24 Mr. Devine Mr. Stoiber 25 1UJV s
1 PRO'CEEDINGS 2
CHAIRMAN HENDRIE:
If we could come to order.
3 The Commission meets this morning in a meeting which we have closed pursuant to Exemption 1 of the Sunshine Act, to 5
discuss the meri.ts in the Tarapur export licensing case,-
6 XSNM 1222.
7 There has been a reasonably steady stream of staff 8
documents, Counsel and OPE documents, miscellaneous other 9
documents.
10 COMMISSIONER AHEARNE:
I would agree with'the steady 11 stream.
12 COMMISSIONER KENNEDY:
Mr. Chairman, I would suggest 13 that most of them are not classified, at least in our normal 14 problems of staff documents, unless we decide that staff 15 documents indeed are any drafts, and if so, then all drafts, it-16 seems to me, should be made available to the public.
And that 17 is a matter or broad policy decision which we had discussed in 18 many issues in the past and concluded that was not the case.
19 So we either have to decide that they are staff documents or 20 they are not.
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'I am concluding'for my own purposes that they are not.
22 COMMISSIONER GILINSKY: What is not a staff document?
23 COMMISSIONER KENNEDY:
A draft.
Because, if it is 24 a staff document under our rules, I think we are making them 25 available to the.public, or at least I will if that is the g
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1 decision.
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COMMISSIONER GILINSKY:
What are you referring to 3
specifically?
4 COMMISSIONER KENNEDY:
A whole host of miscellaneous 5
papers which I found clutt'ering up my in box while I was.
6 trying to concentrate on this matter.
7 CHAIRAAN HENDRIE: Well, it seems to me that ---
8 COMMISSIONER KENNEDY:
Secondly, Mr. Chairman, I would 9
like to make $ noEc' for the record, r cognizing tha't it wi11
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e 10 make no difference other than to make my view clear.
11 I believe this meeting is an unwarranted and 12 unjustified restriction of the public's right to know what the 13 Commission is doing in the conduct of its business.
It has-14 no business being closed.
We have unclassified documents to 15 deal with which present all the issues, clearly and fairly 16 and there is no reason for its closure, in my judgment.
17 CRAIRMAN HENDRIE:
Well, your opinion is duly noted.
18 I think it is a question of the draft materials, 19 certainly from a standpoint of Freedom of Informati5n Act requ'sts and so on, why draft materials are fai.r game and are 20 e
21 treated as' papers of the agency.
22 COMMISSIONER KENNEDY:
I think that has not been 23 generally the case.
24 CHAIRMAN HENDRIE:
I think it is.
People peeled 25 drafts out of us on that basis ~like it was going out of style.
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However, I suggest that we ---
2 COMMISSIONER KENNEDY:
Could I have a note from 3
Counsel on that subject at some. future time?
I W e l l, j,g e' distinctively the reaction would I
MR. BICKWIT:
5 be they a're not to be disclosed.
6 COMMISSIONER KENNEDY:
That's correct.
Tha.nk you.
7 MR. BICKWIT:
You may disclose them.
8 COMMISSIONER KENNEDY: That is right.
That has been 9
the Commission's olicy in the pact, too.
However, if we are p
10 making new policy this morning,_ it is perfectly all right with, 11 me.
12 CHAIRMAN HENDRIE: Why don't I ask the Counsel to 13 frame our present status in the case and to give us a ---
14 COMMISSIONER KENNEDY: I want to know why we closed the 15 meeting.
16 (A buzzing from the audience, alarm call was sounded.)
17 (Laughter) 18 CHAIRMAN HENDRIE:
-- frame a status for us and outline,
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19 if you will, what you see as the key issues and the options.
20 There is a Counsel and OPE joint paper that I have used as a 21 basis for r.yself.
22 MR. BICKWIT:- At this point in the proceeding under 23 your previous order you have terminated what you termed a 24 hearing.
You c' hose not to move to an oral hearing.
As a 25 result, the statutory time limits of 60 days from the termination 1.'7 3UJU j
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1 of th'at proceeding have arrived.
And if at the end of the 2
60 days you have not reached a decision, then it will be the I
3 prerogative of the Executive Branch to make a decision.
The central issues outlined in the paper submitted 5
by OPE and OGC are what we have termed the prospective application 6
of the criteria of Section 127.
7 The issue of the adequacy of safeguards, taking into 8
account that the statute is not clear exactly what the,
9 Commission's resp ~onsibilities are in the area; whether the 10 timing of the Indian need for this fuel shipment is such that i
11 approval of the export would conform to the lj PA's provision 12 relating to terminating fuc1 supply, for example, it was felt 13 if the safeguards was n~ t agreed to by Maren 1980, and whether o
ad 14 there are broader foreign policy _irr nonproliferation considerations 15 that should bear on your decision.
16 Included under that heading is the general 17 determination you may be called upon to make regarding the 18 inimicality of Section 57 of the Act, the Atomic Energy Act.
19 That could constitute the end of our summation.
If 20 you would like more in the way c.
framing our view of what 21 we regard to be the crucial issue, we can do that for you.
22 CHAIRMAN HENDRIE:
I thin'k it would be useful.
23 MR. BICKWIT:
As we see it, the crucial issue. is what 24 has been termed the prospective application of the Section 127 25 criteria.
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1 U The 'statuEe say that you are required to find, 2
based on a reasonable judgment of the assurances provided 3
and other information available to the Federal Government, 4
that the criteria are met.
5 The statute is unclear on its face as to what your.
6 level of certainty should be in making that finding.
As a 7
result, you are propelled.into legislative history.
In fact,
.8 it would bq Counsel's view that in almost every situation, s
9 where the word " finds" is used, you are propelled in.the 10
. legislative history.
11 I hesitate to speak for the Commissioners, but I 12 would guess that~every Commissioner has less than 100 percent 13 assurance that these criteria are-met.
I would also suspect 14 that every Commissioner has greater than zero percent assurance.
15 The central legal issues, as we see it, is what 16 level of assurance the Congress meant you.to have, and after 17 you have settled that legal question, which we are not prepared 18 to fully advise you on at this time, t-hey framing the issue,
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'I think, it would be appropriate for you to apply ySur own level 20 of assurance to see whether it conforms to the level of 21 assurance that the Congress intended for you to have in reaching 22 this decision.
23 There are several other issues, but in our view, 24 that is the central issue.
25 CHAIRF1AN HENDRIE:
It seems to me that --
Why don't u
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1 I give you the gavel and I'll be back.
2 (Chairman Hendrie departed the meeting.)
3 COMMISSIONER AHEARNE:
I will comment that yes terday Iq I did ask the General Counsel's office to do a legislative 5
history search of that issue.
6 MR. BICKNIT: And a preliminary analysis is on its 7
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way to this room.
8 COMMISSIONER GILINSKY:
I'd like-to make one observation 9
of your remark.
When you are talking 'about the probability that 10 a criterion is met, i,t seems to me it is usgful to distinguish
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11 between the criterion or the criteria, and the conditions which 12 they describe, safeguards, explosives and other such co.nditions.
13 It seems to me the criteria either are met are aren't 14 met, depending on your assessment of whether those conditions 15 will or won't apply.
So that's where there is some probability 16 involved.
17 MR. BICKWIT:
The problem is that when you make that 18 assessment, my assumption is that you won't be sure.
19 COMMISSIONER GILINSKY: That's right, but it seems 20 to me useful to draw that distinction.
In other words, 21 everyone h~as his own view as to whether safeguards will or
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22 will not apply, the chance that you have material that will 23 or-won't be used for explosives,that the U.S.
controls will 24 be maintained and so on, and what the standards are for them 25 meeting the criterion, but the criterion is either met or it isn't
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I mean, it isn't' net with some probability.
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3 MR. BICKWIT:
But you are making a finding based on an assessment of the probability.
5 COMMISSIONER GILINSKY: That's right.
6 COMMISSIONER AHEARNE:' Vic, I'm not sure I follow.
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Could you take the, perhaps simple one, the non-nuclear -
8 the use for no-nuclear explosive.
I'm not sure that I see the
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you.and..Len.are saying.
9 distinction betwedn what 10 COMMISSIONER GILINSKY: Well, for example, one of the --
11 Let's take that one.
We would have certain assurances and 12 you attach certain confidence to it, and everyone has a 13 different threshold as to what it takes to meet a criterion, 14 but a criterion is either met or it isn't met.
It isn't met 15 with some probability.
16 COMMISSIONER AHEARNE:
I think you are saying the 17 same thing.
18 COMMISSIONER GILINSKY: Well, I was just trying to 19 make a little sharper the distinction ---
20 COMMISSIONER BRADFORD:
I think -the same i-dea underlies 21 what they are both saying.
It is the difference between saying
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(pt{544 22 that the criteria would have to be rt uvaec -1wely and saying ---
3 23 COMMISSIONER AHEARNE: Well, when Len says.the 24 assurance of the criteria will probably be met ---
25 MR. BICKWIT:
But that's not the finding you would make.
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The finding you would make is that they are met ---
2 COMMISSIONER AHEARNE:
Yes, that they are met, but 3
the probability he is talking about is not that they are 4
different things, but that they are ---
5 COMMISSIONER BRADFORD:
In other words, just th'e 6
assurances on.which that finding rests that have to be met.
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COMMISSIONER AHEARNE:
Yes.
8 COMMISSIONER GIkINSKY:
9 The meeting of the criteria or not meeting only takes place in the present, it is when 10 you decide.
11 COMMISSIONER AHEARNE:
The criterias are yes and no.
12 COMMISSIONER GILINSKY:
That's right.
13 No, I was just trying to sharpen the point.
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COMMISSIONER AHEARNE:
I thought for a minute there 15 was a f undamental.6istinction.
16 MR. SHAPAR:
Another way of painting it is how much 17 confidenca or assurance do you need in order to make these 18 statutory determinations.
COMMISSIONER GILINSKY: Precisely.
20 Let's see, do you ---
21 COMMISSIONER.BRADFORD :
Ss, I understand the flow of 22 the papers that I have read, at least in terms of the most 23 recent ones stating office positions, there is no disagreement 24 that one has to look to the future in making the determination 25 1Usu
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I think that's right.
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3 MR. BICKWIT: And that would be our advice also, that
!l you have to look to the future.
5 COMMISSIONER GILINSKY:
Do you have anything further 6
that you want to say?
7 MR. BICKWIT:
No.
8 COMMISSIONER GILINSKY: Shall we turn to Jim unless 9
you have any other ---
10 COMMISSIONER AHEARNE:
At some stage I have a bunch 11 of questions, but I'd rather, I guess, first hear from Jim, 12 and then, I don't know, Bob or whoever is going to speak for 13 NMSS.
14 COMMISSIONER KENNEDY:
Does OPE have anything
-to say?
13 MR. PEDERSEN:
I think at this point Len has done 16 a good job of framing all the issues as we see them.
17 COMMISSIONER GILINSKY:
Why don't you proceed and 13 then it would be good to hear from Jerry after you finish.
19 MR. SHEA:
I guess what I would do is just sum up 20 briefly the conclusions of the staff rather than wcrk through 21 all the arguments, just to put it in perspective.
22 As was just stated, the staff is in agreement on this 23.
key qucstion as to prospective application of the critorion, 24 that we should look ahead and not just consider them in their 25 current context only.
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1 Af ter working our way through the arguments we 2
found that the staff, in addition, was in agreement that 3
Criterion was met on physical security, and that Criterion 6 I
was not applicable in this case.
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5 COMMISSIONER AHEARNE:
When you say Criterion 3 was 6
met, do you mean both currently and prospectively?
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ML. SHEA:
And prospectively, yes.
8 COMMISSIONER GILINSKY:
Does it apply here?
9 MR. SHEA.
Physical security for LEU?
That's something 10 I will turn to NMSS on, that particular question.
11 MR. BURNETT:
It does.
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12 MR. SHEA:
There,is supplier guidelines and c.ommitments 13 that have to be made.
There was a. visit by a team and they 14 found that the physical security was adequate at Tarapur and 15 that there was no problem on that score.
I 16 As I say, Criterion 6 being not applicable, since 17 it involves technology transfer and this is a fuel.
18 COMMISSIONER AHEARNE: But Jim, you still focused on 19 Criterion 3.
You are saying that the judgment of the current 20 accuracy is based upon the visit of a team ---
21 MR. BURNETT :
In the past.
22 COMMISSIONER AHEARNE:
In"the past.
s 23 MR. SHEA:
And assurances that we have.
24 COMMISSIONER AHEARNE: What type of assurances?
25 MR. SHEA: Could you describe those?
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MS. DECKER:
The written assurances required by 110.43 that safeguards will -
physica.1 security will be I
3 maintained comparable to that being reported by INFCIRC 225 Ovision 1.
5 COMMISSIO:ER AHEARNE: And you have that for an.
6
. assurance?
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MS. BECKER: Yes.
8 COMMISSIONER AHEARNE:
And that tells you that they are 9
currently, and what is the reason for your judging it 10 prospectively they will?
11 MR. SHEA: Well, the judgment that I make on that 12 count is that there is no reason to doubt that they wil1 13 continue in the future.
There is.no contingency -- the 14 assurance is not contingent on any item ---
15 COMMISSIONER GILINSKY: The assurance is to whom?
16 The United States or the IAEA or ---
17 MS. BECKER: To the United States.
18 COMMISSIONER GILINSKY: Do we actually have a 19 document from the Indian Government?
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20 MS. BECKER: Yes.
21 14R. SHEA: And the assurance is not contingent on any 22 future elements such as future supply bein~g continu'ed, plus 23 there are no other indications of possible removal of the 24 material from the appropriate premises, those. elements.
25 COMMISSIONER AHEARNE:
Now, as ~far as the physical I LJV
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physical security extends not only a the reactors, but beyond
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3 the reactors?
r MR. SHEA:
It extends to the fuel as well, isn't 5
that correct?
6 MS. BECKER:
Yes.
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7 That's the lawyer's reading on that.
MR. SHEA:
8 (Chairman Hendrie returned to the meeting and is 9
now presiding'.)
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10 COMMISSIONER AHEARNE:
Your conclusion is that it would 11 extend to the fuel, no matter what were to be done with that 12 fuel?
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MR. SHEA:
Yes.
14 COMMISSIONER AHEARNE: Do you know whether that's 15 a reading shared in by the Indian Government?
16 MR. SHEA:
(Nods in the affirmative).
Do you have 17 any feeling for that Joanna?
18 MS. BECKER: As I recall, the assurance was stated in 19 terms that the United States framed after we promulgated Part 20 110 and it didn' t go into that except to the extent-that it 21 was framed in terms of physical protection will be imposed 22 and maintained.
It is intended, I'think, to look into the 23 future.
24 MR. SHEA:
And cover country-wide use of the material 25 and not be limited to jus t one f acility.
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1 CO:CIISSIONER $HEARNE:
So as far as any requirements --
I MR. DEVINE:
It should be -- here is the notice from 3
the Indians.
(Hands document to Commissioner Ahearne.)
COMMISSIO!jER AHEARNE: As far as any requirements that 5
we have laid down then, they have met them as far as that W
criteri ?
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MR. SHEA: Yes, that's correct.
8 MR. SHAPAR:
I. understand this is the same language 9
in the case o5 other countries as welf.
J.0 CO:OiISSIONER AHEARNE: Right.
11 MR. SHEA:
Beyond those two criteria, we have a 12 division in the staff on the question of whether a find,ing can 13 be made that the proposed export meets Criteria 1, 2, 4, and 5.
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14 The staff agrees that the that enter into the 15 determinations present good arguments on both sides of the 16 issue and that the decision is a close one, but feel they come 17 out in different directions.
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18 I come out as feeling that comp; tent determination 19 can be made, that these four criteria are met.
My assis tant 20 director, Jerry Oplinger and also others in my. staff feel that 21 h
doubt on this score, and that they cannot make that-22 cor. set-ent de termination, that the m'atter should be referred to 23 the President for considerr.tio 24 CO!G1ISSIONER GILINSKY: Are you going to go into them 25 one-by-one?
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COIOIISSIONER kHEARNE: Hopefully.
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'i MR. SHEA:
I can try to do that.
3 COMMISSIONER GILINSKY:
Well, let me ask a general b
question which you can answer now or as you go through it.
5 It wasn' t clear to me, from your mos t recent note of ---
6 COMMIS-SIONER. KENNEDY: Which ohe is.it?
7 MR. SHEA:
596 (c).
8 COMMISSIONER GILINSKY:
596 (c) -- whether you were 9
saying that your ' judgment was that the various safe' guards, 10 using that word in the general sense,was to the conditions 11 of which each of the various criteria speak can be confidently 12 judged to continue into the future, or whether you were simply
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1-13 saving that one necdn' t' have a very high standard for that 14 confidence.
In other words, were you saying with a pretty 15 high probability that our control over reprocessing will' be 16 maintained, and so on, or were you saying that we need only 17 have a very low level of confidence, that that will be the case 18 in order to have the criterion satisfied?
19 MR. SHEA:
Well, I wasn't really saying either, I 20 don' t believe.
The feeling was Just weighing all the factors 21 together that I saw and that was the basic assurances were -
22 provided.
Other indications that t'here might be doubt about 23 their continuation in the future, and this in particular, 24 centers on the questions of continued fuel supply and the 25 uncertainty about that if full scope safeguards are not N
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Also, taking into account other indications, for 3
example, statements of Indian leaders and hard evidence that f
they,would not -- safeguards and other controls would not be e
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5 consi-dere<b.
Weighing that all together in this Phase I.
6 criteria context, I come'up with satisfactory ---
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COMMISSIONER GILINSKY:
Okay, but you used the word 8
" confident judgment" I th. ink, just a little earlier in the 9
start of your' pre'sentation.
10 Are you saying that in concluding that these criteria 11 are met that you, at least, are pretty confident that the 12 safeguards are highly confident or whatever, that the v.arious 13 safeguards that the cri~eria speak about will, in fact, be t
14 continued beyond, let's say the September sort of cut-off that 15 l the bill speaks of,as far as licensing or March, as far as 16 the' fuel shipments are concerned.
Is that your judgment?
17 MR. SHEA:
Yes.
I have sufficient confidence that they 18 will continue ---
19 COMMISSIONER GILINSKY: When you say " sufficient"_,
20 I mean is that ---
21 MR. Sn
-- to make the judgment that the criterion 22 is met.
23 COMMISSIONER GILINSKY: Well, that's what I'm trying 24 to understand.
When you say " sufficient confidence," are you 25 saying that you have high confidence or that it doesn't take much
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to meet the criterion?
2 MR. SHEA: Well, I guess I don't see it as an "cither 3
or situation" for that.
I just find that I am confident enough i
1 tha t this will continue, safeguards will continue and the-5 material, in the case of Criterion 5 would not be reprocessed 6
without U.S.
approval to make the ---
7 COMMISSIONER KENNEDY: Could you give us just an 8
idea of what gives you that confidence, whdtever its level?
9 MR. SHEh:
Well, yes, I' d like to work th' rough, and I 10 did outline some of these in the staff paper, particular'ly, maybe 11 start with Criterion 1.
12 In that case -- we are dealing really with a number 13 of possible future contingencies and the full scope safeguards 14 element is the key one, I think, that we are all concerned about 15 in the near term, which could trigger a cut-off of further 16 supplies'.
17 Now, at that point, India could consider its agreement 18 with the U.S.
terminated, along with the assurances, but to me, 19 that doesn' t necessarily say that the IAEA safeguards on the 20 material that we have provided earlier or' on the redctor itself 21 would terminate.
India,perhaps would take that position, but 22 I don't think that the U.S.
Government would accept that.
23 Also, we have to look ahead to the real' likelihood, 24 I think, that they would actually terminate safeguards on-the 25 facility given the facility ---
1-11
18 i
1 COMMISSIONER GILINSKY:
Well, they bring this s
2
, point excessively.
3 As I read what you are saying is,it can't be shown I that the safeguards will not apply, that we are not absolutely 5
sure that they will reprocess and so on.
And I would say that's 6
not enough, I mean, you really want the opposite of that.
7
^
COMMISSIONER KENNEDY:
Excuse me, but that's your 8
characterization.
Is that your characterization of what he is 9
saying?
~
~
10 COMMISSIONER GILINSKY: Well, that's what I'm asking.
11 Whether in fact that's a correct characterization.
12 COMMISSIONER KENNEDY:
That's what I was asking too.
13 MR. SHEA:
Nell, when you talk about minimal level 14 of assurance, I don't see it in quite those terms.
I see it 15 as a level that is adequate for me making a total judgment of 16 the criterion, and I do take into account the fact that this is 17 unclear at this point,as to whether there will be a termination 18 of supply and the lack of agreement of full scope safeguards,
~
19 that may or may not happen.
At this point, the Act gives a 20 period of time in which to negotiate these provisions, and I 21 give weight to that element in all these criteria determinations.
22 COMMISSIONER KENNEDY: Could you say something about 23 the extent of those negotiations as you understand them?
24 MR. SHEA:
As I understand those negotiations, they 25 are continuing..There has been no termination of those or an O
9 D
1LJV
19
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{., - -
1 indication that the negotiations will be terminating in the 2
very near future.
They are active.
3 I unders tand that the main focus of the safeguards --
!; or the full scope safeguards negotiations, at this point,. is 5
centered on a review by an international committee of specialists 6
in safeguards, to review this matter.
It is a very difficult 7
matter for the ---
8 COMMISSIONER KENNEDY:
This was a proposal that 9
originated wiEh the United States?
10 MR. SHEA:
No, as I understand it,it originated 11 with the Indians.
They proposed this, that this be the 12 approach taken and while it still hasn't begun, and I recognize 13 fully that there are doubts, and Ilshare them along with 14
! everyone, that this will indeed lead to full scope safesuards.
15 Still, by no means have the negotiations come to an end.
They 16 are active, and I think time should be given for this to work, indicated in the statementjwith 17 and I feel uncomfortable, as I 18 weighing the probabilities from one m" nth or week to the next, ya*
19 of the likelihood of the success in the negotiations../.
20 21 22
,j So I am 23 reluctant to put weight on a probability estimate.
p, O 24 I rather feel, have the basic assurances, the 25 negotiations are. proceeding and I want to await the outcome.
lLsV
20
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_.. l ~2 1
now, if some evidence came in that definitely the assurances would 2
d terminate, a statement from the Indian Government has indicated 3
that that would be the end of it as of "X"
date, I would have to N
give that considerable weight and that might well cause me to 5
say that the criterion is not met, but here it is just too fluid
~
6 a preliminary state.to make that judgment.
7
~
MR. PEDERSEN:
Jim, you are going through each of 8
these one at a time, but with regard to the question on the
. 9 maintenance on safeguards, you might want to say so'mething with 10 the experience they had with Canada which certainly, I think, 11 is relevant here.
Also, I think it is quite likely they would 12 have to get fuel, since there is no evidence that there. is any 13 extensive " stockpiling"' going on.
They would have to get fue.1 14 somewhere else and it is very unlikely that that fuel would be 15 supplied by anybody under any conditions other than requiring 16 continuing safeguards.
Is that 17 MR. SHEA:
Yes.
That's my judgment on that and I
~
18 noted that in my submission of the Canadian case.
It was a 19 situation where the Canadians had terminated their continuation 20 of supplies to the Indians after their nuclear. explosion in 21
'74, and yet the Indians still did not take the material out ~
22 from other safeguards or use it in huclear explosives or do 23 any of these.
24 So that's a data point for which I give some weight.
25 The fact that they would have to turn to other suppliers who O
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1 insist on safeguards and the perception by those countries 1
and whether they wanted to deal with a country that had 3
d*ropped out of safeguards after a termination of the U.S.
agreement; although, that latter factor, I'm not sure I would 5
give considerable weight to,in that it would be a somewhat 6
murky pictr.re since the agreement allowed fo
-[-supplINthe I
reactor <4 was totally in the U.S.
hands and if this were to 8
terminate the Inqd[ns could say, well, the-U.S. broke the
' I think, internationally that would be an 9
agreement.
10 element, but I think they would perhaps have some support for 11 the idea that they didn' t really take material out f rom 12 safeguards, but they had been forced to it by U.S. acti.ons.
13 But that is a~ consideration.
I think the Canadian 14 experience is the big one, as you mentioned, and the tie-in 15 to other suppliers.
16 COMMISSIONER BRADFORD :
Jim, as I understand it, 10 17 days or so ago you had approved for distribution to the other 18 offices a staff paper that concluded that in fact, the 19 criteria were not met.
What changed your mind?
Did you 20 find new assurances?
21 MR. SHEA:
New assurances?
~
22 Now, let me review my thinking on that since that 23 is.a question I understood would come up.
24 COMMISSIONER KENNEDY:
Why did you understand that 25 question would come up?
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MR. SHEA:
Because I think it is a natural one.
s t
COMMISSIONER KENNEDY:
Oh.
Well, I didn't know that 3
you had passed a memorandum around which reflected anything of your own conclusions, but go ahead.
5 MR. SHEA:
Let me review the situation on that.
l 6
This particular case I found to be extremely complex i
7 and'a close question right from the start.
Asyouknohi,on 8
the previous export, 1060, I had taken the-position that the
.d k 9
criteria were met and that the export ~should proceed.. Th-is-10 analysis prepared, particularly by Commissioners Gilinsky and 11 Bradford af ter we had made the last recommendation and the 12 subsequent discussions in Congress, and all of the analyses 13 and the discussion since then led me to realize that there was 14 another element to this, an important element that I really 15 hadn't taken into account in the first analysis or my most 16 recent one in 1060.
A question of.the endurance of the 17 commitments and how that relates to the current decision.
18 So I tried to take that into account as the analysis 19 proceeded.
At the same time, I was trying to keep as open a 20 mind as possible on the issue in the light of t.he hearings 21 that were going on and the information that might come in, and 22 to wait until I was really sure abo 6t the issues.
I found it 23 close and I was w(5vering back and forth on the decision 24 throughout this whole period.
In fact, I spoke to others, 25 like Howard at one point just a few days before this draft that
@ @ I[ T) a 1
you mentioned was prepared and circulated.
I was uncertain at s
1 that point as to what my position was.
It was an extremely 3
close question, really a cliff-hanger.
j And Jerry Oplinger had in his own mind in analyzing 5
the issues and in working his way through, come to the conclusion 6
that the criteria, in his view, were not adequately met, and
~
7 was presenting that case to me.
Also, Mary Peterson in my 8
staff had come around to that point of view as well.
9 I was still unsure and my previous positi'on., as I say, 10 was in favor of the export.
And it was getting down ' to 'the wire 11 to the point where we had to make a recommendation to the 12 Commission.
Somewhat belatedly and in retrospect, I really should a?
13 have gotten any the issue in detail, earlier than I did to prevent I started to really bore in on the 14 the great rush at the end) 15 question in detail, Commissioner Bradford.
16 Up to that point, most of the analyses that I had been 17 hearing, other than the ones provided by State Department, were 18 from within the staff and arguing in the direction that the 19 criteria were not met.
And I felt that I had to really think 20 through the other side of the coin, because I really hadn' t done 21 that.
So'I started intensively going into that and this was-22
~
just at the time the draft was being circulated.
In fact, it
%Y 23 was a little before, but that was the staf f view wirh that point, 24 and I was inclined slightly in that direction, although, if you 25 notice the progression in the draft there was a change in my 9
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thinking-as we went from draft 2 to 3, I think it was.
A shift s
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in the draf t in that the conclusion was not quite so stark, it 3
was sof tened and moderated as I worked my way through the thinking.
=
5 Well, the element that I hadn't really focused-on too 6
much was this prospective nature of the assurances, I. felt at 1
7 that point.
And started to think that one through very carefully, 3
8 very closely to see if the issue was really quite so clear on 9
the other side of which I had my doubts.
And I finally 10 concluded, just on the base of my~ own independent assessment 11 that the case was better the other way.
This was very late in 12 the game, I admit, and just before $_he paper was due to. the Commission and it required some a)nd redrafting.
nd 13 14 I also had the feeling that the paper as presented, 15 and there is a basis for doing it this way, was rather more 16 arguing the case for one position rather than reflecting both 17 sides of the coin.
18 Now, there was a little problem in there in that we 19 had sent the first paper down in November, which bas'ically 20 tried to present the two sides of the coin.
At that point, Shaihj 21 I had, as you recall, tried to come to the conclusion that 22 the criteria should be applied prospectively.
That was where I 23 turned that corner.
And I had trouble working through in my 24 own mind what that meant.
I found it a very tough, very complex 2a issue and went back and forth on it, and finally all I can say Y
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25 l-I m
1 is I came out in the direction that I did with the reasons that s
2
.;, I sent down yesterday, elaborating that,since Staff Paper 596A ~
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$is a fair point that you had, Commi.ssioner[was not totally 3
3 4
clear on how the logical chain works through on that.
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5 I think Jerry 's thinking was clear and that wo.rked.
6 through, but my own thinking -- firs t of all I was rather --
7 late in the game when I found that I came out that way, when 8
I worked through prospective application and Jerry felt strongly
~9 the other way, so. 'I felt the only way-to present the issue '
10 was to go to the Commission and not suppress one view or 11 another, including my own, somewhat of an inverse, I gather,
>&wd of the views that jue b'Do-to come to the Commission.
12
.g 13 COLSiISSIONER KENNEDY:
I. commend you for it.
14 CO>D1ISSIONER BRADFORD:
Jim, between the time that you 15 circulated the draft and concluded that the criteria weren't 16 met as the IP position and the preparation of 596A that expressed 17 your view that they were, did you discuss this matter with the
,18 State Department?
19 MR. SHEA:
Yes, I did.
With Nosenzo.
20 CO:01ISSIONER BRADFORD :
Did you. show them.the staff 21 draft?
22 MR. SHEA:
No.
23 COMMISSIONER BRADFORD: Did you show them any of the 24 Commission papers at that point?
25 MR. SHEA:
No.
No, it was just a discussion I had with 7
3 bub
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Nosenso about the implications of this.
2
'i In fact, I should say that was one of the elements 3
th a t I-f elt,' again somewhat belatedly, but I felt should be 1
4 done.
In looking back on it, if you notice that the State 5
submission on this export was very much like their previous -
6 submissions, even though much had happened, your views' and 7
Commissioner Gilinsky's and the whole issue with respect to 8
the application, their submission ---
9 COMMISSIONER KENNEDY:
It should be ' recalled only 10 for the record and not for its significance that there were 11 two views that were presented at that time, and both of them 12 were accorded considerable respectability, as I recall.
13 And I'm sure that the staff would.want to take all such views 14 into account, uculdn't they?
15 MR. SHEA: That's correct, I didn't mean to imply,\\
- ~
16 COMMISSIONER KENNEDY:
Thank you.
17 MR. SHEA:
It was simply that this other element 18 I didn't see really reflected in the State views, and in retrospect I think we probably should have probed State hard 19 20 at that point to find out why they came out this way in the 21 light of this element.
22 The analysis that was being prepared for circulation 23 late in the' game was not -- did not really reflect State's 24 thinking, so I thought I had to probe to find out just how 25 they took this element into account, and the. reaction I had, I I
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migh't' note was that, diell, perhaps it made sense to take that I
future contingency into account under the non-inimicality 3
findings, but Lou was ---
This is their view?
COMMISSIO{JERGILINSKY:
5 MR. SHEA:
This is State Department's view, righ t..
6
-- take it into account when making a non-inimicality w k' ll>roadeer zuun 7
finiling and then 'cco t it along with other factors, 8
non proliferation, objectives of the government and so on, 9
rather than under the criteria one-bylone.
That was basically 10 the approach that at least Lou informed me.
This was not a 11 formal submission, but it was in discussions.
12 And I found, after I had thought about unat and probed that and bounhed' it off my. staff that I really didn' t 13 14 fully agree with that.
In fact, I still continue to believe, 15 as I had in November, that the proper way to do this was to 16 look into the criteria one-by-one and not put into a blurred 17 overall finding in which you can make a broad judgment.
I 18 suppose that, in a way may be easier to do, but I couldn' t 19 find any legislative guidance or direction that wouid allow 20 me to do that.
The guidance was unclear and perhugs one could 21 take that view and the flexibility was there, but I felt that 22 to be consistent in dealing with exports, all of them that we dau 23 deal with, not just the Indian, hare com,ing through all the time 24 and this isn't the only one that I have gone back and forth 25 on, close questions, but this has been the toughest one that I I GJd
28 j :.
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t, 1
have ever faced )that I' felt we should apply at least a g
s consistent standard in saying I've got to look ahead for all 3
of these exports.
Gk So I proceeded on that analysisjfact-and even then 5
I found ---
6 COMMISSIONER KENNEDY:
Let me be assured that there 7
isnt any misunderstanding, at least on my part.
You don' t have 8
to justify to me or anybody else, I believe in thic Commission, 9
the thought processes or anything else-that you go thrc~ ugh.
10 You are obligated, of course, to present'the justification that 11 you believe is important for the conclusions you reached. But I 12 will assert that I don' t expect you or any other member of the 13 staff will be put under an inquisi. tion to explain how you 14
, arrived at conclusions in terms of your thought processes.
Okay?
15 COMMISSIONER BRADFORD:
Well, I guess that's exactly 16 what I'm asking.
17 Jim, in a situation in which we are having a 18 proceeding in which we afforded an outside party a chance to 19 comment on the State Department's views and on a question of 20 this importance, don' t you think it might.have been.better to 21 get State's views on a question that they hadn't been asked to 22 comment on be'f6rerand perhaps also the other parties views,in 23 writing?
24 MR. SHEA: Well, I didn' t think dhat that was necessary 25 and called for in this situation.
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InhearingMc6' question [asIunderstanditthat 1
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was not one of the matters raised in the hearing questions was 3
it?
COLD 1ISSIONER KENNEDY:
Let me say something to that i
5 general proposition.
6 My legal colleague,of course, asserts a fundamental 7
principle here with which I would be wholly in accord, and let 8
me say that I think it ought to be very generally applicable 9
in all such procendings and to all personnel, inclu' ding trie 10 Commission, a view which is held by no less an authority' in 11 the matter than J.
Skelly Wright, by the way.
I find his views 12 on the matter quii e persuasive and wholly in accord with those 13 which I think my colleague just expressed and applicable to all 14 of us.
15 COFS1ISSIONER BRADFORD :
Is that in a speech in~which 36 he recently gave in which he was strongly favor of intervenor 17 funding?
18 COFD1ISSIONER KENNEDY:
Provided by the Congress, that's 19 correct.
That's exactly correct.
~
20 CO3D1ISSIONER BRADFORD:
Just one further question 21 in this light.
During that 48-hour or so period.in which you 22
~
did talk to Lou Nosenzo did you have occasion to discuss the 23 change in position with any Commissioner?
24 MR. SHEA:
I did not discuss the change of position W
25 I any Commissioners, no.
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1 COMMISSIONER AHEARNE:
Could I, sort of on Criteria
't 1 ask someone similar questions that I ask when I went through 3
on Criteria 3.
First, let me focus on the current.
I recognize the 5
prospective that is really a major question, but certainly 6
going back through the -- since I wasn't a participan.t the last 7
time, I have gone through a lot of the Congressional hearings and 8
it seemed, at,least, there were a number of major questions raised, particularly relating to questions raised by Mr. Leventhal 10 concerning the current state of safeguards.
So would you, for a minute, Jim, review, and I don't know, maybe Bob also 12 wants to comment, on the current safeguards.
MR. SHEA: The current safeguards a n picture in 14 India, the adequacy?
15 COMMISSIONER AHEARNE:
Uh-hum.
16 MR. SHEA:
Yes, I think probably you would want to 17 turn to perhaps even Jerry and to Bob to discuss that.
- India, 18 of course, is under IAEA safeguards in general, 19 20 I'
pd 21 COMMISSIONERKENNEDY:(
I 23 MR. SHEA: )*
24 25 I would like to ask Bob to describe ---
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1 MR. BURNETT:
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7 8
9 10 11 m
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13 COMMISSIONER GILINSKY:
Could you comment on the 14
! State Department's reaction to your analysis?
15 MR. BURNETT:
Well, I shifted that down to Mr.'Sherr 16 to look at and asked for his analysis, are you prepared?
17 MR. SHERR:
We did respond to t M Commissioner 18 Ahearne.
He had raised that question, and I had talked to 19 the individual in the State Department who had prepared the 20 thing, and as I understood it from him, he was. told-that the e
m 21 basis for'our analysis was, in fact,;
J 22 And the f act was ---
23 COMMISSIONER KENNEDY: Did he say who told.him that?
24 MR. SHERR:
Lou Nosenzo.
25 COMMISSIONER KENNEDY: Did he say how Nosenzo concluded 1
A j
32 i
t 2
'i MR. SHERR:
Well, 'the memorandum that came from 3
Lou dated Deccaber 19th, referred to a meeting, an earlier 4
l meeting in there or something, but I had a feeling it was crossed signals, but in apy case, he prepared this thing {
5 6
7 8
'9 J.0 11
~
12
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13 CO:01ISSIONER KENNEDY:
Is that a generally available 14 memo?
15 Ma.. BURNETT:
I provided copics to everybody, 16 CO:GIISSIONER KENNEDY: All right.
Then I have it.
17 MR. SHERR:
So the State Department was accurate in 18 the statements that they had made about Tarapur as far as we 19
- know, j but that,they were inaccurate c
a.. m alL.n o w 20 in terms of their criticism n our coneusivus about-India,
\\w 21 22
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23 CO:CIISSIONER AHEARNE:
24 y
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25 MR. SHERR: d L ~.-
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33
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1 1
COMMISSIO::ER : E::NEDY:
I would note, however, 1
accepting fully what you say, I would note that the State 3
Department paper, and we ought to get this corrected and I'll endeavor to do so since Nosenzo did write it to me, I'll get 5
him a letter today, to get on the record a clarification., but 6
I just leafed through again and I don't find reference in it to 7
L, 8
9 10 11 12 13 14 15
)
16 17 CO:CIISSIONER KENNEDY':
Now, Chich memo is this one?
18 COMMISSIONER AHEARNE:
December 19th.
19 COMMISSIONER BRADFORD: This is the attachdent to his 20 letter?
21 COMMISSIONER AHEARNE:
No, this is the. December 19 th to 22 Joe.
23 COMMISSIONER KENNEDY: Yes, that letter precedes the 24 letter that I'm talking about.
The letter that I'm talking 25 about is the letter -- the letter that was being referred to here 9
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was a letter of January the 17th, 1979.
2 MR. SHERR:
That did not make any exceptions in 3
the conclusions
-- we haven't responded to that one.
Il 4
h COMMISSIO:jER KENNEDY:
But that's the one you were 5
asking about, wasn't it?
6 COMMISSIONER GILINSKY :
I thought I was refgrring to 7
the' letter that wa.s being road from, to the reaction to our 8
criticism or staff analysis of Table 5.
9 COM5ISSIONER KENNEDY:
Well,' the letter of January 17th e-10 with a lengthy paper and -- da ted January 5th /
e 11 12
,,is the one I thought you were talking 13 about?
14 MR. SHERR:
No.
That is the subsequent one that we j
15 just received a couple of weeks ago, and the nature of that 16 one is that we, after Lou sent in this memorandum we had sent 17 him a coov of,.
~-
~
18 Their
.~.4 19 response really did not indicate any points of inaccuraclet or 20 anything like th a t, in fact, they really didn't point to any 21 omissions of such.
22 23 24 I[t.rt 25 So I wasn.'t sure fumt we really needed to respond to that,
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1 because they ra. illy weren't pointing out any inaccuracies 2
h in their corment, they just said we didn't have the right s
3 emphasis.
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4 I
5 0
7 In the analysis that we are attempting to provide 8
in the course of the individual CommisJion" papers coming 9
forward,wearet'ryingtoprovidean[increasedperspectivein b!-
10 terms}thenatureofthesedeficienciesinabroadercontext.
11 CO!OIISSIONER IGNNEDY: I'd like to recall for everyone 12 the comment which concluded the State Departr. ant paper.on this 13 subject, the one to which we are now referring, the latest onc.
14 The above co=nents and these were sort of advocacy or 15 whatever comments concerning the points made in the paper 16 which NMSS had prepared at my request following the earlier 17 exchange.
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19 20 21 22 23 24 25
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MR. BURNETT:
And that's what we said.
5 COIO ISSIONER KENNEDY:
But, the point is neither 6
does it say they are inadequate nor does it say that.they are ade'uate.
Neither.
It says nothing, in effect.
It is an 7
q 8
interesting analysis which concludes nothing.
That's what 9
State is saying.
And you concur with~that?
10 MR. BURNETT:
Generally, yes.
11 CO:GiISSIONER KENNEDY:
Okay.
12 MR. SHERR:
That's what our paper says.
13 coo ISSIONER KENNEDY:
Okay.
14 MR. BURNETT:
I think at the same time you have to allowthat,(
15 16 7 That is not to say different than what you just
.s 17 said, Ccamissioner.
e 18 CO:011CSIONER AHEARNE:
19
~}
b j a 20 in one of the volume of papers that had been coming -through, 21 and I'm not really sure in which it was, it might have been '
22 ELD's, I don't know, there was some~ place a remark saying 23 that nor does --
and there was a list of others ---
2.;
MR. BURNETT:
Many other countiies.
25 COCIISSIONER AHEARNE:
Is that ---
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s MR. BURNETT:
That is a true statement.
e CO32IISSIONER AHEARNE: b 2
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i MR. BURNETT:
5 6
7 8
MR. GOSSICK:
Bob, you keep referring to a standard, 9
are you speaking fio INFCIRC 225?
10 MR. BURNETT:
No, sir.
~153.
11 CO?CIISSIONER GILINSKY:
J" h
12 13
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14 MR. BURNETT:
{
15 16 17 18 19
~l 20 CO:GIISSIONER 'N f.3DY: C 21 I
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23 MR. BURNETT:
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24 COMMISSIONER KENNEDY:
25 MR. BURNETT: i w
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6 CO!GIIt'SIONER AHEARNE: L 7
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10 11 MR. BURNETT:
Those are my words, sir.
12 COMMISSIONER AHEARNE:
Oh, those are your words.
COGiISSIONER KENNEDY:
They sound like good words.
13 14 MR. SHAPAR:
Well, do you agree with it?
15 (I.aughter) 16 d COMMISSIONER KENNEDY:
It sounds like sound and 17 reasoned judgnent to me.
18 CHAIRMAN HENDRIE: Presumably you agreeded with them 19 when you wrote them, do you still agree with them? ~
20 After all we have to look prospectively at these 21 things.
22 MR. BURNETT:
Yes, Mr. Ch' airman but any additional 23 data ---
24 COfGIISSIONER AHEARNE:
Well, but now I go back to 25 the issues that Mr. Leventhal was raising and in reading through
in m 1
his testimony he seemed to be a little bit more specific 2
!i about ---
3 CHAIRMAN HENDRIE:
Seals and cameras and such.
COMMISSIOlERAHEARNE:
Right, right.
5 CHAIRMAN HENDRIE:
I thought we settled that.
6 COMMISSIONER AHEARNE:
Well that's -- we may have, and Inoticedthatsomewhereinoneofthepapers,f 7
a m
9 that covers that,'and I'm just trying'to address the --
10 Leventhal seemed to be saying that there's -- that India has 11 resisted placing cameras and tamper-proof seals at Tarapur ---
12 COMMISSIONER KENNEDY:
Didn't Nye subsequentl.y 13 refute that letter or a' positive statement?
14 CHAIRMAN HENDRIE:
Yes, I think he did.
15 COMMISSIONER AHEARNE:
The IAEA inspectors have been 16 harassed and that there was lack of access to Tarapur.
17 It may well be that ---
18 COMMISSIONER KENNEDY: It is my recollection that Nye 19 wrote a rather strong letter on this subject refuting those 20 allegations.
21 COMMISSIONER AHEARNE:
I wanted to'just be sure, 22 thought, on whatever record we are " making here, are those 23 issues of Leventhal's still outstanding?
24 CHAIRMAN HENDRIE: Not that I know of.
25 COMMISSIONER KENNEDY:
Not that I know of.
a ibs0 a
3 40 l
1, i
l i
1 CHAIRMAN HENDRIE:
Counsel?
s 1
MR. SHERR: L 3
4 5
6 CHAIRMAN HENDRIE: Furthermore, I might ccmment, John, 7
that the Leventhal sort of questions lead to a discussion which 8
we had with considerable vigor here abouts back in the days just 9
before the final passage, about a year ago, as a matter of fact, 10 dealing with adequacy questions.
And you sort of pay your money 11 and take your choice, I guess.
I don't think anybody is saying 12 as they stand, and that all the facilities there applie.d that 13 IAEA safeguards, which is the material control and accounting.
14 are just dandy and let's not worry it any more.
Everybody thinks 15 certainly they ought to upgrade.
But then the question keeps 16 coming up, precisely how is the Commission, under the statute 17 to judge adequacy, and is it to judge adequacy.
The criterion 18 say the IAEc. safeguards will be applied and so on it is 19 required by article such and such in the treaty.
And I must 20 say, it seems to me that with regard to sort of the-cutting 21 edges c f the issues in 1222, the license on the table before-
~
22 us, the question of adequacy of safeguards, the way one argues 23 in.the Leventhal terms over cameras and seals and harassment 24 of inspectors are not -- that it isn't the place that the 25 knife cuts.
kVsO
41 t
1 My guess is, from the record before us, the documents s
2 and the associated discussions of a year ago that there are 3
some other places and countries where the safeguards have similar characteristics, the agencies of safeguards applications,-some 5
of the same characteristics as the Indian situation.
That is 6
a circular 66 basis in the agreement -with them and some 7
touching up subsequently at the behest of the U.S.,
and one 8
could certainly raise it here and argue at-length about it, 9
I suppose, but I just want to suggest'that it is -- a.nd I 10 think we haven't come home yet, this morning to some of the 11 discussion I would have hoped might have arisen, and it isn't 12 in this area that it seems to me ---
13 COMMISSIONER AHEARNE:
I recognize that, but may-I 14 have your forbearance though, to ask one more question.
15 CHAIRMAN HENDRIE: Of course.
You will hardly find 16 a more forbearing person.
17 COMMISSIONER AHEARNE:
I was not trying to preside, 18 but I thought this was the key point, but I still wanted to 19 make sure I understood the answer.
20 Mr. Sherr, you are familiar with the. issues that 21 Leventhal' raised.
What is your judgment as to whether they-22 were accurate?
23 MR. SHERR:
Well, the only information that we have 24 from any source was the facts in Mr. Nosenzo's letter of 25 December 19th.
a
?* 2
[? ? ' ~ IR.',i
,y
_ ]
1 COMMISSIONER AHEARNE:
Did we follow up Leventhal's 2
issues?
3 MR. SHERR:
I believe at the time those were raised n
and we had gotten a Commission request for it, we had asked 5
State for information on this kind of thing.
I don't think.
6 anything has happened since that go around.
7 COMMISSIONER KENNEDY: What was the result of that 8
"go around" as you put it?
9 MR.'SHERR:
I'm not sure wha't the final wor.d was, c,u.w cn a m
- 10 maybe someone from IP wan handling-it.
It seems to me that 4
11 it wasn't a conclusive bottom line.
12 COMMISSIONER AHEARNE:
I recognize at that stage it was in the final process of the Congress, but Leventhal raised 13 14 a number of issues.
15 MR. SHEA:
Was it cameras and seals?
16 COMMISSIONER AHEARNE:
17 13 d
r-19 MR. SHEA:
y 20
~7 21 J
~
22 COMMISSIONER AHEARNE: I have that.
23 MR. SHEA:
Oh, you have that one.
It was in September.
24 I have the letter fron. Joe Nye in June sent to Senator Glenn 25 referring to the Leventhal points.
ILJO
43 pp q c i
l
-d 1
g MS. BECKER:
I remember a collection of, I think, 2
the Senate committee posed some questions about matters 3
raised by Leventhal and a letter to the Commission was responded to{,
~ 5 6 MR. SHEA: That's right. m 7 COMMISSIONER AHEARNE: Did we ever ask --! e>~ 8 9 lDid we ever ask for that? 10 MR. SHEA: I don't believe. Do you recall that 11 Jerry? 12 MR. OPLINGER: Jim, at that time I had barely 13 arrived or if I had I was still trying to find the mens room. 14 I just can't answer. 15 COMMISSIONER AHEARNE: Well, one last question on this 16 particular focus, Peter or Victor, what -- do you have anything 17 further to add on this question of the current safeguards? 18 COMMISSIONER BRADFORD: Only that while it wasn't 19 focused on in detail as part of the Commission consideration, 20 f~' ww 21 and ,_j think we are going to have to speak to it in whatever decision 22 I 23 we. reach. In this case, I think it is going to come down to 24 a question of how one allocates the uncertainty. I think it 25 is generally established that it is a ques tion on which verificatic. 3
44 o g n p, Is o t I} rj o 1 is not possible. So the decision one makes depends on where you s put the burdens that come out of the uncertainties. 3 COMMISSIONER AHEARNE: Where did you come down though -- il I notice vou respon _2 to Glenn on that particular issue,.but 5 I'm not sure where you -- did you reach the conclusion that e-- 6 COMMISSIONER BRADFORD: What I said before was that 7 since I found that Criterion 1 wasn't met for other reasons --- 8 COMMISSIONER AHEARNE: No, I've read all of that. 9 I'm asking you, db you have any sense of whether th'e. safeguards 10 are met now, currently? 11 COMMlSSIONER GILINSKY: Well, what do you mean by 12 safeguards are met, are in place? 13 COMMISSIONER BRADFORD: Or are adequate. 14 COMMISSIONER AHEARNE: Yes. 15 COMMISSIONER BRADFORD: Did you mean are in place or 16 are adequate? 17 COMMISSIONER KENNEDY: Well, what does the law require? 18 COMMISEIONER AHEARNE: Well, what about step 1 and 19 step 2. Are in place? ~ 20 COMMISSIONER BRADFORD: Well, certainly they are in 21 place after a fashion, and --- 22 COMMISSIONER AHEARNE: I 'think you have answered the 23 question. 24 COM:'ISSIONER BRADFORD: -- and I just don' t have a 25 feeling that I know about the adequacy, and I don' t have a feeling
.45 1 tha t I have a way of finding out in terms of anything that is s 2 4 likely to be available to in the proceeding. So what I have to 3 do is decide what to do with that situation in light of 4 Criterion 1. 5 COMMISSIONER KENNEDY: Could Counsel tell us what the 6 law requires in this matter? 7 MR. BICKWIT: Well, the statute says that IAEA 8 safeguards must be applied. The statute also says that in its 9 finding the Commi'ssion must find that'that criterion or its 10 equivalent is met. 11 There is, on the issue of whether the IAEA safeguards 12 themselves must be adequate, there is conflicting legis.lative 13 history. 14 COMMISSIONER GILINSKY: Well, it seems to me you 15 can't entirely separate the question of whether they are in 16 place and whether are adequate. If there was an agreement with 17 the IAEA, but inspectors, in fact, never went there, I don't 18 think you could find that safeguards were in place. 19 COMMISSIONER KENNEDY: But you can' t -- now wait. 20 There is the matter of equities. If there was.an agreement with 21 the IAE2, and for its own reasons the IAEA did not send its - ~ 22 inspectors, that can hardly be attributed to the Indians or 23 anyone else for that matter. 24 One might then put some sort of sanctions on the IAEA, 25 I suppose, but certainly it would be inappropriate, in my
- w ILJU
f. 46 I _J 1 judgment, to apply sanctions in such a case against the Indians, s Z ll unless it was the Indians who refused to accept the inspectors 3 or something of the sort, and we have no evidence that that's N the case, that I'm aware of. 5 COMMISSIONER GILINSKY: Well, without relating. 6 specifically to this case, it seems to me that --- 7 COMMISSIONER KENNEDY: But that's ' hat we are talking 8 about, this case. 9 COM$ISSIONER GILINSKY: We ll', I thought we.were talkiag 10 about the question as to whether we need to consider 11 adequacy at all or not, and I thought --- 12 COMMISSIONER KENNEDY: In terms of this case., 13 COMMISSIONER GILINSKY: Well, this case or any case. 14 I feel that you can't separate out adequacies and the question 15 of whether the safeguards are in place. 16 Also, the law, in one place, speaks to the possibility 17 of the NRC actually evaluating the safeguards on site. It 18 says that --- 19 COMMISSIONER KENNEDY: There was subs tantial f 20 colloquy on the gloor, however, in that matter.which I think 21 puts a rather different light on that '.anguage. 22 COMMISSIONER GILINSKY: Well, the law says that the 23 NRC is neither required nor prohibited from doing this. 24 Now, if you are even speaking about the possibility of 25 the NRC --- 1 ~ hYJ0
47 pQ r~; n 1 COMMISSI bfER KENNEDY: The law says thatf{cknating s c 2 ?; bit of non-language because of the colloquy on the'F}oor. 3 And as Counsel has so well pointed out, in areas wher2 there is fuzziness one goes and is driven to, I think were his-5 words, to the legislative history. And in this case, legislative 6 history was for colloquy of a higher order in its significance 7 than committee discussion. Isn't that right? 8 COMMISSIONER GILINSKY: Well, the -f act is the law 9 mentions the possibility of NRC visits'. Now, we are not 10 talking about such visits here, but the poilt I as going to make 11 was that if you even raised the question of NRC visits to 12 evaluate safeguards, that must be on top of some previous 13 evaluation that normally takes place and the visits being a 14 nighly unusual event. 15 CHAIRI!AN HENDRIE: I don't think I have any trouble 16 with your remarks until you got to that last interpretation, 17 which seems to me really a bit tortured. 1-8 COMMISSIONER BRADFORD: Are you speaking about " the 19 highly unusual event"? 20 CHAIRMAN HENDRIE: No, the fact -that the 1aw says 21 that visits are not prohibited means that it must be t contempla, ped that it could be made,"and hence there would be --- 22 23 COMMISSIONER KENNEDY: One must go to the Ploor 24 dcoate and recognize that it was understood by all parties 25 that in no sense was it contemplated. 9 8 ILso i
d 48 i- { ps cs -~ g
- i II l
i 6 1 l COMMISSIONEh GILINSKY: What I'm saying is that if the s b ! Congress didn't contemplate the NRC examining the adequacy of 2 %&aw-3 safeguards, they wouldn't for a moment continence the g possibility of taking or making site visits. 5 CHAIRMAN HENDRIE: Look, if you want to propose that 6 that language in the statute that says doesn't either require 7 a p$rmit, in fact, is the basis for question of adequacy of 8 IAEA safeguards being on the table before us, I just won't buy 9 that. You kn$w, that wasn't the conte'xt in which that' discussion 10 about visits or not visits --- 11 COMMISSIONER KENNEDY: I think it is such an interesting 12 point that we might ask Counsel to, if he could, over the next 13 six or eight months or maybe years, draft a learned legal 14 memorandum to try to draw the relationship, because it is an 15 interesting point. However, it is not obvious to me that the i 16 connection is clearly readily drawn. 17 MR. SHAPAR: Isn't there a little memorandum on this, 18 Carl? 19 MR. STOIBER: Perhaps I could mention one - thing --- 20 CHAIRMAN HENDRIE: Let me just go ahead and comment 21 to Vic, my strong objection to casting that kind.of an 22 interpretation of the visit yea or "nay language, it doesn't mean 23 to imply that it is not a legitimate question in the context of 24 the Act taken overall, and as a practical and reasonable part 25 of the Commission's doing business, but I couldn't agree with-
49 m,7 m i - < i m i 1 you that the visit language means th a t, but -- Carl, you were s 2 going to --- r 3 MR. STOIBER: It seems to me that when you parse the 4 statute and you look at the list of criteria, it is of some significancethatCriterij i begins with the word " adequate". 5 6 when related to physical security, and it is clear that a tW 7 formal adequacy determination by the Commission pf physical de 8 security measures have to.be made in order to establish that /6 W 9 that criterip are' met. 10 I would suppose that the absence of that adjective cV' 11 in Criterip 1 has some significance. On the other hand, it seems 12 clear that if IAEA safeguardsjas applied are so woefully j / 13 F adequate that it is equivalent to having no safeguards at all. A h 14 then it seems to me that you can't meet that criterig. 15 COMMISSIONER KENNEDY: Of course. That is a judgmental 16 matter which we have to exercise. 17 MR. STOIBER: That's right. So obviously you are going 18 to have to look at the safeguards to determine whether they are 19 fulfilling the function for which they are designed.' 20 COMMISSIONER GILINSKY: Okay, but isn't the difference 21 between the IAEA safeguards and physical security that in one 22 case you have an established systemI, a set of standards, and 23 when you say it applies we assume it applies in the sense 24 that it is applied the way it is applied elsewhere and the 25 standards are met an'd so o'n. S 'Lsu
.50 IT) it- .) .i l' (? \\ (1li ti .i ,1'g s 1 Now, I'm not suggesting that we are required to i look at the details of that and see whether it was three times r 3 a year when it should have been four times a year, but I think 1-4 it departs markedly from the accepted standard end-I think I S ! th'at's a question for us to consider. 6 MR. STOIBER: Well, I think Congress knew quite a bit 7 about the IAEA safeguards system and they obviously had an 8 assumption abou what it vas.- . z y s.rptaE/ 9 Now, thWmepted that what'ever it was, 'should be ~ 10 appliedjandifitisnotbeingapplied, then the criterion is 11 not met. 12 COMMISSIONER AHEARNE: Jim, could -- and I do.n't 13 know whether it will come back in time to be of any particular 14 help in this, but I would like you to formally ask the State 15 Department for that[, 16 'l 17 MR. SHEA: Right. We will ask for that. 18 CHAIRMAN HENDRIE: I must say, I'm surprised we don't 19 seem to have that, because there was considerable interest in 20 the matter. 21 COMMISSIONER AHEARNE: Could I continue on that 22 particular point, moving then on the prospective, the concern 23 about the prospective application and give us the pros and 24 cons on that. 25 MR. SHEA: On the general question? 'LJV
I 51 1 COMMISSIONER AHEARNE: Yes, what is it -- if the s 2 agreement for cooperation were to remain in effect, is there an 3 issue on the prospective that is different than the issue of p whether or not it is currently adequate? ~ 5 Another way of asking it is: If you make the judgment 6 that the current safeguards are acceptable and the agreement 7 for cooperation were to stay in effect, would there be a 8 concern about the prospective safeguards? - 9 gg,'SHEA: I would not have 'a concern under those 10 circumstances. 11 COMMISSIONER AHEARN3: So the issue dien, at least as 12 far as you would see it, on the prospective application _of 13 Criterion 1 is whether or not the -issue on the agreement for 14 cooperation remains in effect? 15 MR. SHEA: Would remain in ef fect, that's right. 16 CHAIRMAN HENDRIE: Well there are actually two. 17 With regard to Criterion 1 there are actually two levels as you 18 look along that channel. 19 Certainly you have to -- you paid your money and you 20 take your choice on what you think the prospects are for 21 the renegotiation. If you think there is a reasonable ~ 22 proposition going there, why then I think you have a basis for 23 deciding that there is a reasonable chance that the criterion -- p 24 that the agreement will stay in place and you are okay on the 25 criterion. O
52 [? 9 ^ T) i 4 1 l 1 For this che, there is the additional thing that Jim s 2 l! has mentioned, which I think in my view in this case, is of 3 significance and that is even if the agreement drops, you have a o further decision to make for yourself about whether you think 5 there is a fair basis for thinking that in spite of the agreement 6 ccming off, the Indians might find it necessary and certainly 7 useful and maybe necessary in their own self-interest to maintain 8 the agency safeguards just as they are at the Tarapur station, 9 and I think you can make arguments nne' way or the other, but 10 I think here there is clearly a two-level --- 11 COMMISSIONER AHEARNE: I understand it, Joe, and I 12 certainly apologize for the slowness with whien I'm going 13 through all of this, I think very slowly through the various 14 steps. 15 COMMISSIONER BRADFORD : It's very helpful, though. 16 CHAIRMAN HENDRIE: Well, I have the feeling that we 17 are beginning to get to the good stuff, so I feel a little more 13 cheerfu] about the direction of the discussion. 19 COMMISSIONER AHEARNE: Also, Criterion 2 and 5. M'4 and 5. 20 MR. SEEA: 21 COMMISSIONER AHEARNE: Well, you haven' t gotten to '2 ye t. 22 MR. SHEA: Shall I continue? 23 CHAIRMAN E 'NDRIE : We've only -- we have talked about 24 a lot o'f things under Criterion 1 and I find in these proceedings 25 there are a number of things that eventually have to come out, and m M iUs0
53 p Q p g>n, I 1 we may as well just let ther come out. ~ ~ h'hy don' t you go chead, Jim, and talk about the 2 3 other criterion. MR. SHEA: Well, in Criterion 2, the basic assurance 5 that we have there stems from correspondence between the. 6 Atomic Energy Commission, Chairman Ray and Sethna of _the Indian 7 Government in which --- 8 COMMISSIONER KEUNEDY: And what is his position right 9 now, S e thna, that-is ? 10 MR. SHEA: Well, I have'no change in that position 11 indicated. 12 COMMISSIONER KENNEDY: Fine. I'm talking about his 13 position in the Government? 14 MR. SHEA: Oh, I'm sorry. The position remains the 15 sane, at the mo .it at least. / 16 and that has an unusual fermulat- 'n depicted in bbe 17 assurance which is the only agreement Ehat I'm aware of that 18 has that particular wording that the SNM that has beey_or av 19 is hereafter nade available for, used or produced that TAPS 20 will be devoted exclusively to the needs of that station, 21 unless the two governments specifically agree that the material 22 can be used for other purposes. 23 That followed ifi an exchange of correspondence in 24 which wording of a more specific ruling out of nuclear explosives 25 of any kind was sought. This was the agreement that was finally
- "9
m., 54 i b I 1 reached. The wording on no nuclear explosive use is the ': wording that is found in our other agreements. 3 There is another provision regarding the use of l nuclear weapons, but I think this is the key assurance, this one. 5 The reasoning is that the needs of the Tarapur station would. 6 be peaceful in character and I find it hard to come up with 7 a scenario in which this would allow the Indians to maintain e WL/JJ ftL "L') 8 that they could use this for other misesuf ul purposes, the 4 9 needs of the $tation in relation to this, it seems'to.me to 10 be very different. 11 COMMISSIONER AHEARNE: In other words, from your 12 view, that if that agreement that was made in that lett.er is cyv 13 kept in place, then Cri~erip 7 is met? t 14 MR. SHEA: Is met, yes. 35 COMMISSIONER AHEARNE: So the issue then is whether la or not that agreement is going to be in place. 17 MR. SHEA: Is going to be in place, that's right. 18 And that's --- 19 COMMISSTONER AHEARNE: Is there a differing opinion? 20 We have mentioned that here is where you are ~getting into the 21 area of differing opinions, is there a differing. opinion on 22 what that statement means? 23 MR. SHEA: I don't believe so, let me just double 24 check witht he staf f. 25 MR. OPLINGER: I'm not sure what your interpretation
55 pq ',l I of it is, so I'm not sure. s l i COMMISSIONER AHEARNE: Well, let me ask you, Jerry, 3 if that agreement were not brea~ched or whatever that statement is, the letter is, would you believe that they could take. 5 that material and use it for an explosive device within what-6 that letter means? 7 If the terms of the letter were not MR. OPLINGER: 8 breached? 9 COMEISSIONER AHEARNE: Yes.' f 10 MR. OPLINGER: 11 12 13 14 15 16 17 18 19 7 ~j 20 COMMISSIONER AHEARNE: So then if -.would it be 21 correct that if the agreement isn't broken, the agreement for cooperation isn't broken, then you ivould say there would be 22 23 no-scenario if the terms of the letter were not bceached? 24 MR. OPLINGER: That's true. 25 MR. SIIEA : One looks ahead to that possibility and bringj O j^'% IGJG
Db .Q i i. n !l ) 1 in to play the considerations that I mentioned earlier on s i certainties about that, but negotiations are under way at I,fud@ l l 'tryuzaju w , m ie c r i s i n p l a c e a n d j the present period and thej factor, i-the other factors under play under Criteria 2 take this - te 5 into account under the other information finding that is- ' hen judging / h 6 / riteria provided 7 LMtements by the Indian officials regarding -t-he nuclear device [,theIndians, of course, have detonated a nuclear device 8 9 in 19 7 4 -- ~ 10 CO OiISSIONER AHEAPRE: Before or af ter that Sethna 11 letter? 7 fhe Sethna letter, that was before, and this 12 MR. SHEA: 13 lead directly to seeking this Sethna letter was my understanding. 14 CO?OIISSIONER GILINSKY: Let's see, Jim, are you going 15 to cover the question of assurances on the reactor es opposed 16 to fuel? 17 MR. SHEA: I could go in to that. 18 COMMISSIONER AHEARNE: He did cover that. 19 COICIISSIONER GILINSKY: Did I miss something? 20 CO 0!ISSIONER BRADFORD: I a ce-. 21 COMMISSIONER GILINSKY:f, d 22 e 23 COMMISSIONER BRADFORD: Jerry did. 24 COMMISSIONER GILINSKY: Jerry did, but what I'm 25 interested in Jim's response to that. IL U
57 rl3 m a f' ~l 1 CHAIRMAN HENDRIE: s 2 1 3 (Pause) 4 !i COMMISSIONER AHEARNE: Who is waiting? l 5 CHAIRMAN HENDRIE: Let's see --- 6 MR. PEDERSEN: The fact that the Sethna comment or m the' Sethna statement refers only to[_ 7 8 a,- 9 CHAIRAN HENDRIE : Okay. I 5ee. 10 MR. SHEA: Yes, the way I look at that is similar to 11 the prospective brought to it in the ELD analysis, or at least 12 that consideration weighs heavily with me that the assurance 13 that we have there in the Sethna/ Ray exchange was worded very 14 generally 15 16 17 18 1 19 COMMISSIONER GILINSKY: Could you go over that language 20 in the letter? 21 MR. SHEA: The language in the letter,. right. Let me 22 just read it. t 23 "The Government of India would like to reassure the 24 Government of the United States of America tha t the special 2S nuclear material-that has been or is hereafter made available JO
1 58 rm -s 1 I 1 for or is used or produced in the Tarapur Atomic Power station, s 1 located at Tarapur, will be devoted exclusively to the needs of 3 that station unless our two governments herea'ter specifically agree that such material be used for other purposes." 5 COMMISSIONER GILINSKY: And you think that may apply 6 to material which is not supplied to by the United States? 7 ~ MR. SHEA: That's right. It does not say the U.S. 8 supplied special nuclear material. 9 COMkISSIONER GILINSKY:, 10 ] ma 11 MR. SHEA: j-12 13 14 i 15 16 17 "~l ._J 18 COMMISSIONER AHEARNE: Was that a wording that we 19 asked for? 20 MR. SHEA: Yes. We provided the letter. - 21 COMMISSIONER AHEARNE: We provided the. letter and - 22 they responded. 23 MR. SHEA: They responded to it, yes. 24 COMMISSIONER BRADFORD: Wasn't that following several 25 requests for less cabiguous language, all of which were rejected I
59 }d GD ' ' ~ ' i r_. I ' t I w 1 by India, that this is what we finally settled for, not what 9 we originally asked for. 3 MR. SHEA: That's right. The history of the exchange
- ! is detailed in the staff paper 596A, back and forth when we 5
sought nuclear explosive wording restrictions, we wound-up with 6 this formulation, the needs of the station. 7 CHAIRMAN HENDRIE: Maybe since a quiet moment arrives, 8 let me just inform the Commissioners and the assemblage that 9 when I was called out earlier that was a phone call from Lou 10 Nosenzo --- 11 COMMISSIONER AHEARNE: India has exploded a weapon. 12 (Laughter) 13 COMMISSIONER KENNEDY: Let the record note that there 14 was laughter because it was intended to be a~ humorous remark. 19 CHAIRMAN HENDRIE: W"ll, I was kind of hoping Lou 16 was about to tell me there was a document on the way from India, 17 you know, with solid assurances, but that wasn' t the case either. I 18 t, 19 20 21 22 23 24 25 9 3 e h
60 s r-1 L y 3 ii ii 5 6 7 8 9 10 11 12 7 13 s 7 14 COIGIISSIONER GILINSKY: ; j 15 CHAIRMAN HENDRIE: Just that there had been - there 16 was supposed to have been an interview, I guess, with the 17 Foreign Minister in which he made comments along the line that la if the Indians found a need to use peaceful nuclear explosives 19 in their engineering work or something like that, wliy they ' d 20 do it, and comments like that. 21 COMMISSIONER BRADFORD: That is not inconsistent with 22 what Desai has already said. ~ 23 MR. SHEA: Yes, I was just going to mention that. 24 CHAIRMAN HENDRIE: Well, I wouldn't care to go much 25 further and speculate about it because it is very preliminary
61 [iD G /? FD f i I I q s l i j la 1 and I think we ought to see how the thing sorts out s 2 eventually, but I wanted you to be " 're of that. 3 MR. SHEA: Desai's statement did -- from what I 4
- heard, Desai's statement put a little more emphasis on if 5
devices could be made that it wovid be purely peaceful and 6 CHAIRMAN HENDRIE: This is his formal statement in 7 Parliament, not the Q and A. 8 MR. SHEA: No, this is the Q and 'A, I think where this 9 developed. The statement about, well,' if they 7.re'cl.ean and 10 if they are non-military, that flavor, I think, then we could 11 use them, of course. But his more formal statement in Parliament 12 or in the Special Committee on Disarmament was that they would 13 not develop nuclear explosive devi.ces. So we have these two 14 somewhat conflicting statements with different emphasis, 15 certainly. I think they should be weighed in the balance as 16 well. 17 COMMISSIONER AHEARNE: Jim, jus t to help me understand, l'8 is there a mixing here of two different Criteria 1, 2, wh'ich 19 specifically refers to the use of the material being supplied 20 and then some Section 307, perhaps, refers to the ddvelopment 21 of nuclear devices. ~ 22 MR. SHEA: I guess I'm not sure I follow you. 23 COMMISSIONER AHEARNE. Well if --- W 24 MR. SHEA: 9 25 i ' ". O AJJ .) e
62 f,h ~ 1 r COMMISSIONER AHEARNE: f I 3 1 5 l 6 '} 7 8 MR. SHEA: Oh, I see. 9 I would see it as Section 307, because Criterion 2 relates'?t 10 our supplying. If they did it on their own or with 4 11 other people's supplies that would be totally divorced from us 12 that's a different question. 13 COMMISSIONER AHEARNE: Since this issue has come in 14 in this way -- This is a closed classified meeting, is that 15 right? 16 COMMISSIONER KENNEDY: It's a closed meeting. 17 COMMISSIONER AHEARNE: Is it classified? 18 COMMISSIONER BRADFORD: Closed because of classification, 19 right. 20 CHAIRMAN HENDRIE: And let me just amplify, John, 21 the Counsel will have the responsibility in due time to go through the transcript of the meeting and identify portions, which 22 23 because of their nature, ought to remain clasrified and the 24 balance presumably then will be released to the Public Document 25 Room. So not all of this is just blanket classified, but you LJd
m 4 ,i 1 can enter on any discussion. s COIe1ISSIONER KENNEOY: Let me note that in discussions 3 up to now I have been listening very carefully, and except for the portion of a letter which I read from the Department of 5 State, which for its own classification, I have heard not more 6 than three sentences which were classified, except for the 7 report which the Chairman just brought from Fir. Nosenzo. 8 CO?O1ISSIONER AHEARNE: ; Im 9 10 ll ) 12 MR. SHEA: [ 13 COMMISSIONER AHEARNE: [ 14 ] 15 MR. SHEA: _j r-16 Cue 1ISSIONER AHEARNE: 1 [] 17 18 ciR. SHEA: ] 19 COMMISSIONER AHEARNE: [_ 20 7 21 s ~ 22 MR. SHEA: / j 23 COMB 1ISSIONER AHEARNE: 24 " ~1 25 c j - s -e
j, ,._m 64 i I ~ f i' i fj s p; _.- 2 I w 3 s-CO:OIISSIONER GILINSKY: l g ,' l, 5 6 CO:01ISSIONER AHEARNE: I x m 7 -i S-8 COCIISSIONER GILINSKY: L 9 9 . - + I. J.0 CO:011SSIONER AHEARNE: s. 11 12 13 14 -T 15 .J 16 IR. SHEA: C I 17 r ~ 15 CO:OiISSIONER KENNEDY: u-19 20 21 ) 22 CO01ISSIONER AHEARNE: l_ ) s 23 CO:01ISSIONER GILINSKY:/ W 24 %) 25 COOiISSIONER KENNEDY: } OJU 3
65 s e y ! :i f 1 CO:CIISSIO::ER GILI!! SKY : 3 ,] lj CO:GIISSIO y'ER AHEl.RNE: > l 5 6 m. CO:GiISSIONER BRADFORD: [ ~} 8 9 CIL'.IRMAN HENDRIE : Is -. J.0 'J { 11 CO:CIISSIONER GILINSKY: 12 13 ) w s a 14 MR. SHEA: j_ 15 16 17 7..a 7 18 CO:GiISSIONER GILII: SKY: I ed r-19 MR. SHEA: ( 20 21 ~. 22 / ^ 23 CO GIISSIONER AHEARI!E: l_ 24 -l 25 '1 44 '%e )ly'
66 pg 'I l l 1 I l-- s 2 3 .J ^ MR. SHEA: 5 l 0 y s 7 COMMISSIONER AHEARME: 1 ,,,s 8 MR. SHEA: 9 MR. STOlBER: I would make t'wo points relativd'to the 10 statutcry language in the new Section 129 of the Act. 11 First of all, the applicable activity is whether or 12 not a non-nuclear weapons state has engaged in activiti.es involvingsourceor[specialnuclearmaterial, and having 13 direct significance for the manufacturpf or acquisition of 14 so it is direct signficance,3/ ~4and, u s 15 nuclear explosive devicesz 16 has fciled to take steps, which in the President's judgment 17 represents sufficient progress toward terminating such 18 activities. 19 The second point is that the application 5f that al section is made, 4t is conditiop upon a-finding by the 20 President)*and it is really because of this difficulty in finding 21 ple" 22 of litmus test as to e activitic's have reached the level U < 1/ 23 that they have this direct significance that it was. decided in 24 the debates to confer that authority on the President. I 9 25 MR. PEDERSEN: g _.i. 1OJU ) j ,t
l 67 s f '\\ ~ ', 1M 1 s -7 li i 3 4 s 6 7 8 9 9 ~ o 10 R. SHEA: 11 ) 12 13 COOIISSIONER AHEARNE: ( 14 15 16 / 17 MR. SHEA: (( ] 18 CO0iISSIONER AHEARNE:.h 19 20 CHAIRMAN HENDRIE: Let me note for the record that 21 starting back a couple of sentences ago this conversation 22 has high qualifications for classification. 23 CO?@iISSIONER AHEARNE: Well, no, I recognize that -- 24 CHAIRMAN HENDRIE: Or non-declassification. 25 COMMISSIONER AHEARNE: I recognize all of that. s le JV e
68 g l l i I l 1 CHAIR *4AN HENDRIE: That's fine, but sometimes it is s 2
- useful in the transcript if you know where you are going, to 3
put a mark point. I-4
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5 6 7 8 _9 2 9 MR. SHEA: { l m 10 / 11 COIO11SSIONER AHEARNE: f_ ) 12 MR. SHEA: : r- ~ 13 COCIISSIONER AHEARNE: i ) 14 MR. SHEA: L, 15
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s 69 ^ c,:m 1 1 I .~. 4 3 r MR. DEVINE: l = 5 6 7 7 8 ~ COICIISSIONER AHEARNE: L 9~ .I 10 MR. DEVINE: L ll 12 13 ~.d 1/' I COFCIISSIONER GILINSKY: L 15 t a 16 COMMISSIONER AHEARNE: 17 18 19 20 5 s~ COSDiISSIONER GILINSKY: ; 22 23 24 1 we 25 i s ~ :, ILJU ._ m,
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- i MR. SIIEA: L 3
CHAIRMA!1 IIENDRIE : John, let me make a -- we have 'i l talked, aside from <}ssorted subject selected at random, we have 5 talked about Criteria 1 and 2 with some discussion going.back i 6 to staff, l'm going to quit in'16 minutes, Commissioner Kennedy 7 has to leave. 8 What I thought it would be useful to do would be to 9 stop now, because~ there are some of tliese differences _ in point 10 of view in the staf f and see whether the staf f people think those M. 1.1 have been reflected fairly as regards Criteripn 1 and 2. 12 Let me start out and make sure that Jerry, in, particular, 13 gets a chance to add anything elco you want to add and then I 14 will see who else, from whatever quarter, might like to make 15 an addition, but I'd like to sort of keep it on Criterion 1 and 2 16 for the moment since we seem to have fallen into a format of 2L 17 moving ~through the criterion. As Vic points out to me, it is 18 kind of useful to get everybody's comments while you are focusing 19 on a particular area. 20 COMMISSIONER AHEARNE: I would say risen to the format, 21 but --- 22 CHAIRMAN HENDRIE: Had risen to the format? Yes. 23 COMMISSIONER KENNEDY: It depends on where you were 24 at the time. 25 MR. OPLINGER: I don't think I have anything to add to UJb t
71 v:m p i 1 - i I what has been said this morning and what was in the papers that 1 you already have. I mean, not all the material in those 3 papers has been covered by this discussions, but there is h nothing beyond what was in the papers and this discussion that 5 I could contribute on 1 and 2. 6 CHAIRMAN HENDRIE: Other comments, anybody back in thilt 7 quadrant like to take a shot at it? 8 (No response.). 9 COMEISSIONER BRADFORD: Let nie just ask, with regard to 10 the --- 11 CHAIPPA'1 HENDRIE : Let me just complete this. I 12 don' t want to stop my geographical survey and leave out, you 13 know, the southeast or some other. Anybody like to pitch their 14 two cents worth in on the subject, even including those near 15 at hand. 16 (No response) 17 CHAIRMAN HENDRIE: Okay, Peter, you interpret it 18 correctly, go ahead. 19 COMMISSIONER BRADFORD: As to the second driterion, 20 Jim, in your 596A, I guess it is, you had said.that with regard 21 to the Sethr.a letter, f 22 23 i 24 25 f
72 i t c.,. 1 3 .i ~_A a M P.. SHEA: F L-b 7 t 8 s 9 CHAIRMAN HENDRIE: Along that line,*and because it 10 becomes of interest -- it is of interest here, it is also of 11 interest with regard to Criterion 5 when we get there, remind 12 me again about the spent fuel recovery provisions, agreements 13 and understandings between ourselv.cs and India. There is a 14 recovery of spent fuel proposition somewhere in here, and at 15 the moment I don't recall it clearly. cL 16 MR. SHEA: Are you thinking of Criterion' 4 and 5, 17 perhaps? Are you thinking of the assurances on those for 18 retransfer and reproces".ing? 19 MR. DEVINE: The provision in the Agreement for 20 Cooperation provides for the return of spent fuel. 21 CilAIRMAN HENDRIE: I. guess so. Let me ask: First of 22 all it is in the agreement? 23 MR. STOIBER: Article VIII of the agreement. 24 CHAIRMAN HENDRIE: Article VIII in the agreement. 25 Is there any other literature between.the two. governments on 4 l f ILJU
3 s i i 1 return of spent fuel? 2 COMMISSIONER GILINSKY: In what circumstance? 3 CHAIRMAN HENDRIE: Well, the circumstance of laterest is a termination or an approaching termination of the agroment 5 or the pos t-termination. 6 COMMISSIONER GILINSKY: Yes, what does the a'greement 7 say on that? 8 MR. STOIBER: Well, it is rather interesting language. 9 It states: "In the event the parties do not~ reach 'a mutually 10 satisfactory agreement, either party may, by notification, 11 terminate this bilateral agreement. Before either party takes 12 steps to terminate the parties will carefully. consider the 13 economic ef fect of any such termination. Neither party will 14 invoke its its termination rights until the other party has 15 been given sufficient advance notice to permit arrangements by 16 the Government of India, if it is the other party for an 17 alternate source of power and permit adjustment by the Government
- 1. 9 of the United States, if it is the other party of production schedules.
The Government of the United States will not invoke 20 its termination rights unless-there has been widespread acceptance 21 by these nation: aith whom it has bilateral agreements of the. 22 implementation of safegua.ds by the agency. or provisions similar 23 to those contained in this agreement." 24 COMMISSIONER GILINSKY: Now, doesn't that all concern 25 the case in which the trilateral doesn.' t get negotiated? e
74 1 1 COMMISSIONER BRADFORD: I don' t think that language 't has had any meaning since July of 1971 when the trilateral 3 was negotiated. 4 N MR. STOIBER: I take a different view point. 5 COMMISSIONER BRADFORD: Well, do you want to start with 6 the beginning ~ of the Article then? 7 MR. STOIBER: " Recognizing the desirability of making 8 use of the f acilities and. services' of 'the IAEA, the parties 9 agree in principlb that the agency will be requested to enter 10 into a trilateral agreement." 11 COMMISSIONER BRADFORD: Yes. 12-And then down below that comes the language that you 13 read, "... in the event that the parties do not reach a mutually 14 satisfactory agreement on the terms of the trilateral agreement 15 envisioned in this article..." and then it goes on to describe 16 the arrangements for the return of the spent fuel. 17 Now, it seems to me that once the trilateral is 18 reached, then that condition precedent is satisfied and that 19 all the languaga that follows from it, in the event that you 20 don' t reach the agreement on the trilateral simply becom6r 21 inoperative. 22 COMMISSIONER GILINSKY: Which was in doubt at the time 23 we signed the agreement. 24 COMMISSIONER BRADFORD: That language mattered for 25 8 years, between 1963 and 1971, but it.seems to me that once the 9 IUJV i i
s 9 1 l trilateral was signed it just terminated. 2 MR. STOIBER: But there is a linkage between the 3 existence of the trilateral and the bilateral and if safeguards
- were to be abrogated that would require an abrogation of the 5
trilateral agreement which then might be invoked by the parties 6 as grounds for termination of the bilateral agreement,' uhich 7 at least in my view, arguably falls into ---. 8 COMMISSIONER BRADFORD: Yes, but the language is in 9 the event that we don' t reach agreement on the tril~ateral. It 10 doesn't say or that the trilateral is subsequently breached. 11 MR. STOIBER: Well, of course, when you are talking-12 about the termination of any international agreement.you are 13 talking about whether or not the purpose behind the agreement has 14 been somehow frustrated by the action of another party. So 15 obviously the purpose of the IAEA trilateral agreement was to 16 enforce a system of safeguards and if that whole system breaks 17 do,n,'then it affects the basis upon which the United States 18 agreed to the supply of fuel under the bilateral, and therefore, it calls into question those obligations as well. 19 20 COMMISSIONER BRADFORD: I think the very least~that 21 can be said about that interpretation is that India might not. 22 share it. 23 MR. STOIBER: I'm sure thm.t's right. 24 COMMISSIONER AHEARNE: Peter, was your point then that -- 25 your interpretation of that would lead.you to.what conclusion?
f 76 E' ^ f i b i 1 COMMISSIONER BRADFORD: That we have -- that between I '2 the years 1963 and '71, had there been failure to reach a g 3 trilateral agreement, then following through the rest of it, -!.:a w : - 1 } bdE"there were procedures that would,; enabled us to bring back 4 5 the Tarapur. spent fuel, but that today, the only provision, _and 6 I can' t remember which one it is now that speaks to spent fuel 7 at all, gives the Indians the right to send the spent fuels
- lhk' av s
8 back to us in the event cf a.Uvs breach of thc: agreement. But g 9 there is nothing operative today that enables us to get the 10 spent fuel back in the event that in the Indian eyes the breach 11 is on the U.S. side. o 12 MR. STOIBER: Also, the provision pw Article 6D which 13 says: "In the event of non-compliance with the guarantees -- 14 with the provisions of this Article and the subsequent failure 15 of the Government of India to fulfill such guarantees and 16 provisions within a reasonable time, the Government of the 17 United States shall have the right to suspend or terminate this 18 agreement and require the return of any equipment or devices 19 transferred under this agreement and any special nuclear material 20 safeguarded"--- 21 COMMISSIONER GILINSKY: This is if they violate the 22 terms of the agreement? 23 MR. ST.OIBER : Right. COMMISSIONER BRADFORD: If India violates the terms 24 25 of the agreement. But India is not going to agree that India t 9 M
77 i l I violated the terms. l 1 i MR. STOIBER: Right. 2 i MS. BECKER: There is a general right for the United 3 ,i States to buy back spent fuel in Article 2F of the egreement. ~ COIG1ISSIONER GILINSKY : Could you read that? 5 MS. BECKER: "With respect to any implemented ma'terials 6 prod uced by the Tarapur Atomic Power station, which is in exc.ss of the need of the Government of India for such material 8 the tnat is programmed for the peaceful uses of atomic energy, Government of the United States shall have the first' option to 10 purchase such special nuclear material at the fuel value price of the United States commission whic.h may be in effect 12 domestically at such time as it may exercise its options." 13 CO!OIISSIONER GILINSKY : So it turns on excess? 14 MS. BECKER: Yes. 15 CO?OIISCIONER BRADFORD: 16 17 18 _j ( MS. BECKER: 20 CO3D1ISSIONER AHEARNE: C 21 22 23 9 J 24 COIGIISSIONER BRADFORD : f% 25 IJ
78 l o i I r 1 ' ] pg,.,i?.i T S S T O'J R R AHE AR?!F.
- g
-4 3 CO?O1ISSIONER BRADFORD: L ~... 3 5 CO:01ISSIONER AHEARNE: L i l 6 ] 7 8 CO:CIISSIONER BRADFORD ' 9 10 ,j r 11 CO:OiISSIONER AHEARNE: i .m 12 4 \\ 13 CO:0 ISSIONER BRADFORD: L, ,j 14 CC:01ISSIONER AHEARNE: [ 15 9 16 MR, STOTBER: (1 / 17 CO:OIISSIONER AHEARNE: IC 18 ,,.j s 19 MR. STOIBER; 20 21 22 23 COIiMISSIONER BRADFORE : L 24 25 l + g m e i tsu i i
s \\ l l' 1 J 3 MR. STOIBER: L N 5 6 7 8 9 10 J 11 CO:01ISSIONER BRADFORD: 12 13 14 15 16 MR. BICKWIT: ) _] u 17 CO:O ISSIONER BFGDFORD: _) e 18 CHAIR'1AN HENDRIE: 19 ,_ [ 20 MR. STOIBER: e 21 22 4 23 COMMISSIONER KENNEDY: [, 24 -,{ 25 5 -~ e w W j
80 1 1 .c COIeiISSIONER AHEARNE: [ _ 3 1 5 6 7 [] 8 CHAIRMAN HENDRIE: ,] 9 CO 01ISSIONER KENNEDY:,I I 3 11 CHAIRMAN HENDRIE: !v 12 13 14 15 j 16 COMMISSIONER BRADFORD: 17 18 19 20 1 21 22 23 24 m. { 25 ..A I GJG
81 l t g l 1 J 2 .l 3 i 5 __'s l CHAIRIGN IIENDRIE:( O 7 8 9 J. 0. -] 11 CO.'CIISSIONER AIIEARNE : 12 .7 ~ 13 CO'OiISSIONER BRADFORD: [ 14 15 7 w 16 COfGIISSIONER GILINSKY: L, 17 _j 1 18 CHAIR'GN HENDRIE: 19 20 21 22 MR. STOIBER:l~~ 23 24 i 25 St a,s..
82 , \\ t 1 ~~, 3 ll J 5 COliMISSIONER AHEARNE: C 6 7 8 9 MR. STOlBER: This subject, in fact, was so interesting 10 that two years ago the American Society of International Law's 11 moot court competition, in which law schools from the entire 12 country competed, selected this problem as its problem. 13 COMMISSIONER AHEARNE: Excuse me, then, could you 14 provide a short, a short --- 15 (Laughter) 16 COMMISSIONER BRADFORD: I would only add that I was 17 a judge at the University of Maine Law School on that. 18 MR. STOIBER: I would only add that I was the final 19 judge in the entire round. 20 CHAIRMAN HENDRIE: Who won? 21 MR. STOT.BER: It was the University of Kansas. 22 CHAIR'4AN HENDRIE: And which way? 23 COMMISSIONER BRADFORD: They don't judge it by 24 positions. 25 COMMISSIONER GILINSKY: In preparing this note for 6 1msv
83 e 1 John, you might include how the history of differences on I 2 -.v-c interpretations o,r' agreements with India varies on this. 3 l CHAIRMAN HENDRIE: Let's see, Sam, we scratched out 4 some time for the next session on this. 5 (Commissioner Kennedy departed the meeting.) 6 MR.'CHILK: Yesterday we had :.a!.ked about trying to 7 do it on Friday, which hasn't worked out and we suggested to 8 the Chairman that we try this on Tuecdly and Tuesday seems to 9 work out. Tuesday afternoon. 10 COMMISSIONER BRADFORD. Yes at the rate we are 11 going I suggest reserving another block for this. 12 CHAIRMAN HENDRIE: Yes. Well, maybe I can -- 13 Yes,.I don't think it hurts to carve blocks out 1/ in looking ahead We can always find something to do with the 15 time. I think for the morning, enough. 16 COMMISSIONER BRADFORD : Yes, the only other point on 17 carvihg blocks out, though, Joe, in order to reach a decision 18 earlier rather than later, it is as well to keep them coming 19 as quickly, one af ter the other as we can so that people don' t 20 forget and go back over. 21 COMMISSIONER AHEARNE: Yes. 22 CHAIRMAN HENDRIE: If a schedule.a recurrenca interval 23 based on my ~ critical judgment of the retention time, why 24 COMMISSIONER AHEARNE: We can't break for lunch. 25 (Laughter)
- "o m
, 84 s I I i l 1 CHAIRB1AN HEI'DRIE : All right, thank you very much. '2 (h'h e reupon, the meeting in the entitled matter was 3 adjourned at 11:45, a.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 -A LsV -}}