ML19259B268
| ML19259B268 | |
| Person / Time | |
|---|---|
| Site: | 07002738 |
| Issue date: | 01/11/1979 |
| From: | Barnes J, Curtis C, Scherr S CENTER FOR LAW & SOCIAL POLICY, National Resources Defense Council |
| To: | |
| References | |
| NUDOCS 7901180318 | |
| Download: ML19259B268 (19) | |
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usec 3efore the ll JAN1 1,a:..> f UNITED STATES NUCLEAR REGULATORY COMMISSION o+. d ~ 5 =-*
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Washington, D.C.
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.a In the Matter of the
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License No. XSNM
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EC'.CW INTER'JATIONAL COMPAN'l
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Docket No. 70-2738
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(Agent for the Government of
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India on Application to Export
)
)
PETITIONERS' WRITTEM COMMENTS IN RESPONSE TO THE COMMISSION' S ORDER OF DECEMBER 8, 1978 Petitioners, Natural Resources Def ense Council, Inc.,
("NRDC"), the Sierra Club, and the Union of Concerned Scientists
("UCS"), submit these written comments to the Nuclear Regulatory Commission (the " Commission") in response to the Commission's 0rder of December 3, 1978 scheduling a hearing focusing on four topics, i.e.,
(Order, at 3):
(1) the sufficiency, for purposes of the Nuclear Non-Proliferation Act (NNPA), of Prime Minister Desai's assurances that 'he will not authorize nuclear explosive devices or further nuclear explosions ';(2) the adequacy for purposes of the NRC's determination under the NNPA,,of the safe-guards applied by the International Atcmic Energy Agency at the Tarapur facility, and of U.S.
government information on those safeguards; (3) the status of U.S.-India negotiations regard-ing the return of spent fuel from Tarapur to the United States for storage; and (4) the need for the fuel requested.
As the Commission knows, neither the Ccmmission, the Depart-ment of State nor the Department of Energy have fully responded to Freedcm of Information Act ("FOIA") requests filed over three weeks ago.
As a result, Petitioners' ability to participate is this stage of the proceedinc has been limited.
Nonetheless, we are convinced THIS DOCUMENT CONTAINS POOR QUAUTY PAGES 78011gg5gq;
. th t the Octmission is unable to certify - " based on a reascnable jude ent of the assurances provided and other anformation available to the Federal Government" - that the section 127 criteria of the Atomic Energy Act, as amended (the "Act"), hate been met.
42 U.S.C.
2155.
Further, the Commission cannot determine that the proposed the common defense and security" expert would not be " inimical
-^
as required under Section 57c of the Act.
The proposed export will take place within eight T.cnths of the deadline set in Section 128 of the Act, which mandates full-scope safeguards.
Yet there appears to be nc real progress towards Indian acceptance of IAEA safeguards on all their activities.
The proposed " multinational" committee to assess the possible impae: cf such safeguards on the Indian nuclear program represents cnly another Indian effort to stall the resolution of a critical issue in U.S.-India nuclear cooperation.
With the., cencerns in nind.
Petitioners' comments below address the tcpics raised by the Com-mission's Order.
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explcsive devices or further nuclear explosiens.
Petitioners' Motion, pp.
7-9.
Most of those cuestions remain unanswered to our satisfaction.
In its consideration of license applications XSNM-845 and XSNM-1060, the Commission has considered the issue of Indian acsurances fcilcwing the
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statements by prime Minister Moraii Desai, speaking in the Ra ya Sabha a
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cf the Parliament, Desai commented that:
"...When I said that I am against all nuclear explosions a peaceful or otherwise, I have maintained it.
But, when I
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if this enera.v.
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It is different from a nu-clear explosion entirely.
I de not knew whether it shculd be used at all like that.
But if I an assured that way, chen it may be used.
It is not a cuestion of anybcdy else doing that.
It is ver". clear.
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b asing nuclear energy for any other peaceful purpose.
If it had done that, I could have understoed.
I have still to learn it.
I am goinc about it.
(interruption) But it dces
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That is the main consideration in this matter.
We are wedded to the use of nuclear enerc." for c.eaceful n.ur.:cses and we are 4-^.
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Having seen no other " assurances" which would centradict or explain away the Prime Minister's statement, that statement stands in direct conflict with the presently applicable Criterien(2) of Section 127 of the Act or its equivalent.
Desai2s comments reflect the continuing distinction that his country has made between civilian and military uses of nuclear explosives.
That distinction leaves unresolved the concerns raised by Commissioners Bradford & Gilinsky in their Separate Views on XS::M-1060.
Those concerns, raised in April of 1978, suggested that, absent the degree of urgency associated with the Commission's action en XS::M-1060:
...it might have been possible for the Commission to initiate a process designed to obtain the required assurances through further consultaticn and negotiation with the Government of India."
Unless these " required assurances" have been given, especially after the added statements by Desai before the Rajya Sabha, the Ccmmission would be remiss in meetinc its statutcry responsibilities if it were to ence again avoid this matter with the excuse, nine mhnths later, that the need for urgent action does not permit such assurances to be acquired.
2.
The adequacy, for the purpose of the NRC's deterninatica under
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infc rma tior on those safecuards The Petitioners submit that the proposed export cf nuclear material under the pending license application does not meet Criterion (1) of.Section 127 of the Atomic Energy Act or its equivalent. Cri-terion (1) states:
IAEA safeguards as required by Article III(2) of the Treaty will be a n. lied with respect e
to any such material or facilities proposed to be exported to any such material or facilities previously export-ed and subj ect to the applicable agreement for co-operation, and to any special nuclear material used in or produced through the use thereof.
The nuclear material to be exported will not be subject to "IAEA safeguards as required by Article III(2) of the Treaty..."The express objective of these NPT safeguards, as set out in IAEA I.*:FCIRC/
153 (1971), is to prevent the diversion of safeguarded materials for use in any nuclear explosives.
Instead the fuel supplied to TAPS is covered b' the non-NPT safeguards procedures cutlined in IAEA INFCIRC/
6 6/Rev. 2 (19 68 ).
Their objective is to prevent caly the use cf safe-guarded T.aterial to further any militar-purpose.
The distinction between the objectives of the two safeguard systems has not been ignored by India.
In a July 10, 1974 letter from
". ';. Sethna, Chairman of the India Atcmic Energy to Oixie Lee Ray, Chairman Of the U.S. Atomic Energy Cctmission, the Government cf India stated that it was unable to agree with the 'riew of the U.S.
that ander the safeguards acreement re'ated tc such Agreements f:r Icc:tra-
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o the manufacture of peaceful nuclear devices is not inconsistent with non-NPT safecuards, which preclude only military uses.
The IAEA would not be cblicated to inform the U.S. of such an action and nic_ht be restrained from doing so by INFCIRC/66/Rev.2 restrictions on the disclosure by the IAEA safe uards inclementation data.
The Commission should insist on agreenent by India to IAEA verification that nuclear materials supplied for use at TAPS is not beinc. diverted to the manufacture of neaceful nuclear devices.
Absent such a clarification, the Commission cannot find that the safeguards
_/
to be applied are ecuivalent to these recuired under Criterien (1).
Assuming arcuendo the non-NPT safec.uards en the TAPS nu. clear
' material are ec.ual to NPT safecuards! the Commission must determine a
under Criterion (1) that these safecuards are adecuate.
The precise issue of whether the Nuclear Non-Proliferation Act requires the Cctr".ssion to T.ake an independent assessment of the adequacy of safeguards was addressed during Senater ficcr consideratic cf the e-c..;-.
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.s neither required to conduct nor prohibited frcr conducting country or site specific visitations in its consideration of the application of IAEA safeguards.
The ad.endment was accepted only after agreement between Senators McClure, Glenn and Percy that the Cc= mission is required to independently assess the adequacy of IAEA safeguards.
Sumnarizing the discussion of the amendment, Senator Percy said:
"It is not really a question of whether the NRC independently will assess the adecuacy of safeguards.
The question is really how they will do it. _/
The record in this proceeding does not provide a basis for a reasened judgment that the IAEA safeguards on the nuclear fuel sup-plied to India are adequate.
Considerable doubts about the overall effectiveness of the safeguards system remain as a result cf t.Te Special Safeguards Implementation Report for 1976 ("SSIR") and the unwillincness of the Cctmission's Office of Nuclear Safety and Safe-guards to certify the adequacy of uhe IAEA safeguards.
Even the Department of St.te is willing to concede that "the Agency has in general had diffi.culty safeguardine bulk-handling facilities," such as the National Fuel Complex ( ":rFC " ) at Hyderabad where the fuel for TAFS till be fabricated. --**/
- /
Concressional Reccrd, Fenruary 7, 1975, at S.
1464.
- / Written Comments of the Department of State, dated recember 5, To e.
w as 7,;;rently the IAEA is still.;; ab_e c concl;de quanti-t; i cel; that there were no diversions of safeguarded materials in the countries in which it conducts inspections.-*/
In regard to bulk-handling plants, the SSIR has identified a nunber of specific safeguards problems:
--inability of the IAEA to verify Material Unaccounted For (MUF) values or to substantiate the limits of error reported to them:
--the possibility of " borrowing" nuclear material from other facilities (presumably unsafeauarded);
--large errors in measurement technicues;
--lack of continuous inspection to verify material
- +7 enterina plants at the starting point of safeguards." ~'
Petitioners are not aware of any information which suggests that these problems are not present at the NFC.
Indeed, they may be more sericus since the NFC, as we understand, includes both a safeguarded Tarapur_ fuel fabrication line and an unsafeguarded line, 1ccated in the same buildinc without a secured physical barrier betweer ther.
fir. Paul Leventhal has written that:
" Safeguards are so crude and ineffectively acplied at the Tarapur portien of the Hyderabad nuclear fuel complex, that i t is by no means im-probable that India could successfully divert withcut detection a sufficient amount of Icw enriched
"/
IAEA, Special Safeguarcs Ir.plementation Repcrt fcr 1977.
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uranium (LEU) over a period of years for further enrichment in:0 seferal critical masses, assuming that it had a small clandestine enrich-ment facility at its disposal.
Enough LEU to pro-vide feed for one critical mass (500 kilograms) represents only 2% of the annual 25-ton throughput of the plant used to convert low-enriched uranium flouride gas into low enriched uranium dicxide powder, and slightly less than 3% of the 20-ton annual throughput of the plant used to fabricate the uranium dioxide powder into circalcyclad fuel for Tarapur.
Bear in mind that the IAEA has no way of verifying that the annual reported "UFs from these plants do not, in fact, substantially exceed these low percentages." */
There may be a similar opportunity for undetected diversions of " hot" fuel from the TAPS reactors.
According to the State Department, a surveillance camera has been installed on " top of each reactor...to permit the IAEA inspectors to deter-mine whether the reactor vessel has been opened, thereby permitting fuel to be removed, during the period between inspections."
However, unlike some other I?EA-safecuarded reactors, there are nc
+,7 seals en the TAP 2 reactor vessel. ~~
'This lack of seals makes the surveillance at T3,PS vulnerable tc malfunctions of the cameras.
Assuming such a malfunction a
TAPS reacter vessel could be opened and fuel rods or pins replaced with dummies.
IIornal IAEA independent verification procedures of materisi acccuntancy would not provide an effective backstop.
And
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- 6., at 7.
- / Letter cf Louis V.
';c s en:c, Deru y Assistant Secretarc cf State, EE ed San: ember 12, 1973, :
".r. James Shea.
2ffice
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the diversion wculd go unnoticed.
Thus, in assessing the adequacv.
of IAEA safeguards at TAPS, the Commission shculd inquire as to the history of all camera failures at TAPS since their installation
- a. tap _e.-*/
In light of the foregoing, the Co~ mission should undertake, prior to a decision on the pending license, an insn.ection of IAEA safeguards implementation at both TAPS and the NPC Given the serious uncertainties and dearth of information which exist concernine. the effectiveness of IAEA safecuards in India, the Com-mission cannot make the required independent judgment concerning
- /
their adequacy. ~~
3.
The status of U.S.-India necotiations regarding the return cf sc.ent fuel from Tarac.ur to the United States for stcrac.e The Petitieners are deeply concerned about the lack of pro-c.ress made durinc. the last two-and-one half v. ears on arranc.ements s y..n - # "_ o_ '
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In :nis context, the State Department should provide additional
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longer acccrded any urgency by the Executive Branch; and the U.S.
Gcvernment still lacks contingency plans or the capability for the emergency return of spent fuel from India or elsewhere.
Yet the risks associated with -its presence in India are mounting.
First, the full-scope safeguards criterion of Section 128 of the Nuclear Non-Proliferation Act will be applicable to India within eight months.
If India continues to refuse safeguards on all its nuclear activities, shipments of nuclear fuel to TAPS will be p: chibi ted.
Considering the positions taken by the Indian Government in tne past, it is likely that India would consider safeguards and assurances concerning TAPS fuel as terminated.
The storage ponds at TAPS are filled with over 60 tons of spent fuel, containing encugh
. plutonium for several hundred nuclear bombs.
Second, Asia has become the = cst proliferation-sensitive area cf the *-crld.
Efforts to develop nuclear weapons in India and other nations in the region may accelerate as a result of recent events.
The U.S.
diplomatic reccgnition of the People's Republic of "hina coincided with another Chinese at=cspheric nuclear test and was folicwed by the Executive Branch's approval of the prcpesed sale of Framatome of two Westinghouse-designed reactors to China.
This first transfer of U.S.
nuclear techno1cgy may hace centributed to the already deep concern over security in Taiwan and Scuch Ecrea.
I"
- icns have conducted their ci 11_an nuclear prcgrams.ith
- /
a weapons option clearly in mind. -
Pakistan's purchase of a reprocessing plant fron France is still underway.
Former President Bhutto has confirmed that his motivation in seeking to acquire the plant was to give Pakistan a nuclear weapons capability. --**j The unrest in Iran and the Viet-namese invasion of Cambodia also add to a climate conducive to further spread of nuclear weapons in the region.
Third, the Executive Branch's concentration on the exransion of storage capacity at TAPS portende the eventual reprocessing of the spent fuel in India.
The unsafeguarded reprecessing facility located at Tarapur is now operational.
As U.S.-supplied spent' fuel continues to accumulate at TAPS, the economic cost of its return to the U.S.
will grow as may pressure from the Indian Gcvernment upon the U.S.
to permit reprocessing.
The U.S.
might have no alternative but to relent.
- /
See Fialka, "Talwan's Nuclear Pctential Is Concern to U.S.",
Eashine:cn Star, January 10, 197f at A-3; Rcuse Ccmmittee en Interna:10nal Relations, Subcommittee of International Organiza-tions," Investigation cf Korean-American Relations", 95th Ccngress, 2nd Session, at 80.
(October 31, 1978).
- */ *:ashincten Post, December S, 1978, et A16.
The failure of the Executive Branch to mcVe ahead with arrangener.ts for spent fuel. return from India raises some doubt about the viability of the Executive Branch's of fer to s tore foreign spent fuel here as a nonproliferation measure.
The failure of the U.S.
to secure the removal of spent fuel fron India does not portend well for sfrilar efforts in regard to Taiwan and South Korea, and other countries in sensitive regions.
The Cc= mission thus should insist that the Executive Branch renew negotiations with the Indi an Governmen'. on the return of TAPS fuel and accelerate the development of a U.S. capability for emergencj spent fuel return.
2.
The need fer fuel recuested Petitioners note at the outset that we are forced to rely en estimates contained in the ' memorandum entitled " Fuel Recuirements for Tarapur Reactors" dated April 3, 1978, from Ken Pedersen to Commissioner Gilinsky.
Presumably the Commission has before it current information on the actual timing and number of units involved in the refueling.1/
The Pederson memo estimates that uranium inventories prior to the E.O.
12055 shipment would yield approximately 214 fuel assem-blies.
Ne have not received informaticn on how many fuel assemblies could be produced from the E.O.
12055 shipment.
However, the Written Comments of the Department of State submitted to the Cenmissien on January 5, 1979 note that the normal three months production at the Nuclear Fuel Complex (NFC) is about 47 fuel elements (State Depart-ment Comments, Appendix, p.2).
The Executive Branch " Export License Applications Analysis - XSNM-1222" (submitted to NRC on September 15, 1973) notes that the E.O.
12055 material shculd have been ready for feeding at NFC in mid-August and prccessed by mid-Dece=ter (a period
+ ' -
Petiticners have received, pursuant to their FC~A request, a ecpy of a November 30, 1975 letter from Kenneth Federse-c Lcwis Scsen:c recuesting such information as well as inferraticr er cur-wwww.m.2 cw-
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Tnas, at a minimum we can assume that the E.O.
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Followinc. the Pedersen oro3ections, based on 65 elements n.er refueling, / the fuel. currently in India (including the 47 units from E.O. 12055) would be sufficient to refuel through the TAPS II refueling scheduled for January 1980.
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air-shipped to India, becoming available fcr pr: cessing at the NFC by October 10, 1979, one month after the license is granted.
The uranium could then be processed in nine mon'hs, becoming avail-able in July, 1978 - in time for the scheduled refueling. /
Thus, even by denying license XSNM-1222, the Commission can see to it that India is given a continuous supply of fuel, provided that India accepts full-scope safeguards within the eighteen-conth grace period.
On the other hand, if India does not accept such safe-guard s, the approval of XSNM-1222 would provide sufficient fuel to power the Tarapur reactors through the latter part of 198 2
/ - 3 full-years stockpile beyond the cutoff date set by Section 125 of the Act.
This would permit the Indian Government to frustrate the Congressional intent that nations be given a reasonable period of time - not fi;e years - in which to accept full-scope safeguards.
-*/
Ncte that the ene-month estimate for air-shiprent, and nine nonth estimate for processing the fuel are taken directly frca the State Department's Cctrents ( Appe nd i:. p.1) and E:<ecutive Branch Analysis (p.1) respectively.
';/
See the Department of State Cc=ments (Append n p.2).
. Another concern voiced by the State Department is that opera-cf the :;uc_ ear Fuel Complex (::FC)
.;; acen ;_srupted by delays i.n shipping aranium from the U. S.
State Department's Ccmments (App., p.1)
_(See also letter dated June.15, 1978 from Joseh S. Nye to Senator John Glenn, p.3).
The argument seems to be that the U.S.
should not cause the NFC to remain idle by withholding the export.
This is an irrelevant consideration.
The U.S.-India Agreement for cooperation merely obligates the U.S. to provide India with sufficient fuel to operate the Tarapur Atom-ic Power Stations (TAPS).
No mention is made of the NFC.
As long as the U.S. ensures that adequate fuel is supplied for use at TAPS, it has fulfilled its obligations.
This can be done under the scenario out-lined above by Petitioners.
Uranium could be shipped to the NFC with sufficient lead time for it to be processed and available at Ta'rapur for the July 1980 refueling of TAPS II.
CONCLUS!CNS For the reaons stated above, as well as for the reasons set forth in their February 14, 1978 motion and October 31, 1978 supplemental memorandum Petitioners believe that export license application XSNM-1222 should be denied.
Respectfully submitted,
/
Cated:
11 January 1979
{
/
CLIFTO::/ E. CURTIS JAMES I. SARNES,/
TEC.'!AS DEVINE _
Mailing Address:
Center for Law and Social Policy 1751 N Street, N.W.
Washington, D.C.
20036 (202) 872-0670 Attorneys for the Sierra Cicb, Union of Concerned Scientists, and NRDC
/
k.6hu d S.
JACO3 SCHERR THOMAS B.
STOEL, JR.
Mailing Address:
Natural e,esources Ce#a-ca Ccuncil 917 15th Street, N.W.
Washington, D.C.
20005 Attorneys for NEDC 2:2nfOrd Law SOhCCl StudET.! i n t e r."
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoirg Petitioners' Written Comment ~ in Response to the Commission's Order of December 8, 1978 were delivered by hand this 11th day of January 1979, to the following:
Chase Stephens, Chief Docketing and Service Section Office of the Secretary of the Cc= mission Nuclear Regulatory Commission Washington, D.C.
20555 Carlton R.
Stoiber, Ziquire Assistant General Counsel Nuclear Regulatory Commission Washington, D.C.
20555 Irwin 3. Ro thschild, III Office of the General Counsel Nuclear Regulatory Cc= mission WashinJton, D.C.
20555 and by mail, properly stamped and addressed to:
Martin G. Malsch, Esquire Office of the Executive Legal Director Nuclear Regulatory Commission Washington, D.C.
20555 Peter Tarnoff Execu'.ive Secretary Department of State Washington, D.C.
20520 Thcmas S. Martin, Esquire Special Assistant to the Assistant Attorney General Department of Justice, Room 3143 Washington, D.C.
2u530 Diane Wright Harmon Assistant to the 'Tice President Eficw Intern 2:icnal Ccmpany
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Washing:cn, D.C.
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