ML19269B996
| ML19269B996 | |
| Person / Time | |
|---|---|
| Site: | 07002738 |
| Issue date: | 01/11/1979 |
| From: | Becker J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19269B994 | List: |
| References | |
| FOIA-80-336 NUDOCS 7901190189 | |
| Download: ML19269B996 (13) | |
Text
.....,..,,,,,
Ut!ITED STATES OF A" ERICA NUCLEAR REGULATORY CCt'ftISSION BEMPE T"E CC'"':55: ';
O In the Matter of
)
)
EDLOW INTERNATIONAL C0!!PANY
)
License Application No. XStiti-1222
)
(Agent for the Government o. India
)
Docket No. 70-2738 on Application to Export Special
)
Nuclear Materials)
)
NRC STAFF C0ftMENTS ON PROPOSED EXPORT OF SPECIAL NUCLEAR MATERIAL TO INDIA FOR THE TARAPUR ATOMIC POWER STATION The NRC staff hereby submits its views on issues raised in connection with the subject pending license application:
License No. XSNM-1222, as amended, to authorize Edlow International Company to export 16,803.6 kilograms of uranium, enriched to a maximum of 2.71%, to India for use in the Tarapur Atomic Power Station (TAPS).
On December 8,1978, the Commission ordered a public hearing focusina on four topics:
(1) the sufficiency. for purposes of the fluclear Non-Proliferation Act (NNPA), of Indian 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 safeguards applied by the International Atomic Energy Agency at the Tarapur facility, and of U.S. Government infomation on those safeguards; (3) the status of U.S.-India negotiations regarding the return of spent fuel from Tarapur to the United States for storage; a nti (4) the need for the fuel requested. The following staff comments are keyed to these four topics.
TOPIC 1 The questien of Indian assurar. es regarding r,uclear ex;;;osicrs has been addressed in tne Executive 3 ranch analysis of XSNit ',22:
Plot 3ofdi
dated September 15, 1978 and in the staff's analysis dated November 20,1978 (SECY 78-596).
The Commission's determina-tion under Criterion 2 of Section 127 of the Atomic Energy Act need not rest, of course, solely on the Desai statement quoted above.
The Executive Branch has cited the written assurance contained in a letter dated September 17,1974 from Dr. Homi Sethna, Chairman of the Indian Atomic Energy Commission, to Dr. Ray, Chairman of the U.S. Atomic Energy Commission, that "... the special nuclear material that has been or is hereafter made available for, or used, or produced in the Tarapur Atomic Power Station located at Tarapur will be devoted exclusively to the needs of that Station unless our two Governments hereafter specifically agree that such material be used for other purposes."
SECY 78-596 quoted several additional statements by Prime' Minister Desai relevant to the question of peaceful nuclear explosives. Since that paper was prepared, the Prime Minister is reported to have made the following statement in response to a Parliamentary question during the November 30, 1978 Rajya Sabha debate on nuclear policy:
It has been our policy for all the past years, started by Jawaharlal Nehru, that we will not have anything to do with nuclear weapons and that we will develop nuclear energy for peaceful purposes.
This is the policy to which we are sticking, and if any explosion can be race without any fallouts ard.tithout any such things wnict lead to atomic weapons and only for peaceful purpo:es, that explosion is never debarred.
-J-a TOPIC 2 A.
Acclication of Safenuards The staff wishes to cor:. ment first on the contention of the National Resources Defense Council, the Sierra Club and the Union of Concerned Scientists (!iRDC et. al.) (!1otion of October 31, 1978, pages 2-4) that the Commission is'not in a position to determine that Criterion 1 or its equivalent is met because the material to be exported under XSNM-1222 is not covered by IAEA safeguards as required by Article III(2) of the Nuclear Non-Proliferation Treaty (NPT).
N.1DC et al. note that the objective of safeguards agreements conforming to IAEA INFCI?,C/66/Rev. 2, the type of agreement covering the TAPS facility, is "to prevent the use of safeguarded materials to further any military purpose," whereas the objective of agreements conforming to IAEA I!!FCIRC/153, applicable to safe-guards agreements under the ?!PT, is "to prevent the diversion of safeguarded materials for use, in any nuclear eul os ives. " The argument of HRDC et. al. here implies that only INFCIRC/153-type agreements satisfy the requirement of Criterion 1 of Section 127 of the Act, and that I!iFCIRC/66-type agreements do not.
The staff believes that this interpretation of the NNPA is erroneous.
INFCIRC/153 safeguards agreements,
for example, require the application of IAEA safeguards on all nuclear activities under the jurisdiction or control of the State concerned. Had the Ccngress intended that cr.ly the
'x INFCIRC/153 type of safeguards agreement be considered to satisfy Criterion 1, full-scope safeguards coverage would have become an immediate licensing requirement upon enactment of the NNPA. But the Act, in Section 128, explicitly defers full-scope safeguards coverage as a licensing condition for an 18-24 month period after enactment of the NNPA. Moreover, a large number of States receiving U.S. nuclear exports have safeguards agreements modeled on INFCIRC/66/Rev. 2; to interpret Criterion 1 in the manner suggested by NRDC et. al.
would have resulted in immediate termination of further U.S.
nuclear exports to all such States, and it is clear from the legislative history of the NNPA that this result was not intended or expected.
(See, e.L., S. Rep. No. 95 467, 95th Cong.,1st Sess., Oct. 3,1977, p.16)
Furthermore, the reference in Article III(2) of the NPT to "sa'feguards required by this Article" has been interpreted by the parties to the Treaty, in dealing with non-nuclear weapons States who are not parties to the NPT, as a reference only to the means of verifying the undertaking in Article I of the NPT as follows:
ARTICLE I Each nuclear weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such wea;cns or exslosive devices directly, or indirectly; and not in any way to assist, encourage,
x or induce any non-nuclear-weapon State to c.anufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.
Thus, if the material to be exported will be subject to IAEA safeguards under INFCIRC/65/Rev. 2, it can be said that IAEA safeguards as required by Article III(2) of the NPT will he applied 9ith respect to the material to be exported, as provided in Criterion 1 of section 127 of the Atomic Energy Act of 1954, as amended.
That the Senate, in ratifying the NPT, was aware of the above interpretation is evidenced by a statement in Senate Executive Report No. 91-1, Treaty on the Non-Proliferation of Nuclear Weapons, 91st Cong., 1st Sess., March 5, 1969, as follows :
ARTICLE III It is in the context of the problem of gaining the widest po,ssible adherence to the treaty that the committee records its interpretation of Article III.
One interpretation of Article III would seem to demand that a country that neither signs the treaty nor extends inter-national safeguards to all its nuclear facilities should be denied all forms of peaceful nuclear assistance from signatories such as the United States. Alternately, there is a less rigid interpretation of Article III that a non-signatory can continue to receive nuclear aid if the material and equipment provided by a signatory is covered by inter-national safeguards.
The comnittee appreciates the administration's uneasiness about any suggestion that the United States should accp:
a hard and fast policy of nuclear. embargo on ncnsigna:c 'es.
Such a policy could destrcy :ne very incentives to a: era :e to the treaty that the Uni ed States wishes to encourage.
To stimulate nuclear autar by a rigid application cf :ne
. very means designed to encourage inter ational coopera-tion in the nuclear field is obviously not the intent of the Non-proliferation Treaty.
It is the view of the committee that the treaty does not obligate nuclear-weapons states to treat nonnuclear.
signatory and non-signatory states on the same basis.
Neither does the treaty require that preferences be given to signatory nonnuclear states. As a practical matter, however, it is the view of the committee that the nuclear powers should be most reluctant to treat nonsignatory states on the same basis as signatory states, despite the fact that the treaty does not prohibit such action.
The benefits and services to nonsignatories should surely be far less than those accruing to those countries who decide to sign the treaty.
By any standard it would be consistent with the intent of the treaty to be mor? willing to provide, for example, assistance in the nucir:e excavation field to a signatory country as it becomes avc. iable rather than to a nonsignatory.
Similarly, the Unite d States should be more willing to extend its assistance in he nuclear desalting field to signatories of the treaty rather than to those countries who decide not to sign.
It is the view of the committee, therefore, that the applica-tion of article III should be handled with a carefully considered appreciation of what will encourage states to adhere and what will encourage them to abstain.
While there are differerdes in scope (and other differences) between safeguards agreements under INFCIRC/65/Rev. 2 and those under INFCIRC/i53, it should be noted that the Secretariat of the International Atomic Energy Agency has interpreted the undertaking in INFCIRC/66/Rev. 2 agreemencs not to use the safeguarded materials to further any military purpose as including the obligation not to divert them to nuclear weapons or other nuclear explosive devices.
The pcsiticr. of the IAEA Secretar a:
d
. is that the "no military purpose" undert2 king includes "no nuclear explosive device" in all INFCIRC/66 agreements, past and future.
At a meeting of the Board of Governors in February 1975 in which, among other things, a trilateral safeguards agreement involving an exchange of notes between the parties reflecting this concept was considered, t5e view of the Secretariat was stated as being that Agency safeguards from the outset had been intended to ensure, to the extent possible within th?
Agency's powers, that safeguarded nuclear materials were not used for nuclear explosions or any other military purpose, and that in the future, the use of an exchange of letters for this purpose would be replaced by includi".g a provision in the agreement itself.
However, at a later Board of Governors' meeting at which an INFCIRC/(5 agreement containing such a provision was discussed, the Governor frcr :ndia re:111ad the Secretariat's observations at the February meeting, and, while not raising any objection to the agreement before the Board, considered that the Secretariat's views constituted an important new policy which his delegation could not accept without study of its aspects and implications.
He indicated his delegation's feeling that the new poli:3 ; c rted to an attemot to incl.:6
~
-- 6 in I"70:?.0/66 agreemer,t; pr;ei:icns relevant essentially to the NPT, and, accordingly, his delegation's opposition to incorporating such provisions as a standard feature of such agreements.
B.
Adecuacy of Safecuards Imolementation With respect to the ad2quacy of safeguards implementation in India, NRDC et. al. contend that the Commission is unable to make a positive determination, citing the failure of toe Executive Branch analysis to take into account the Safeguards Implementation Report (SIR) for 1977, and the unwillingness of the NRC's Office of Nuclear Materials Safety and Safeguards (NMSS) to " certify that IAEA safeguards are adequate."
It is true that NMSS has taken the position that it has not received country-specific information which permits it to make an independent conclusion as to the effectiveness of IAEA material control and accounting safeguards in India.
But the Act is ambiguous with respect to whether the Commission's determinations under Criterion i require a finding of safe-guards adequacy; it requires the Commission to find, based on a reasonable judgment of assurances and other informa-tion available to the Federal Government, "that IAEA safeguards... will be applied."
(For a discussion cf Commission findings of safeguards adecuacy under Section 127 of the Act, see Chairman Hencrie's letter of June 19, '.37E to Senator Glenn.)
The NROC et. al.
als citt ;rets repcr:s ir.dicating that tht 1976 SIR expressed concern about the IAEA's inability to verify that significant quantities of special nuclear material had not been diverted in five unnamed countries in which there are bulk handling facilities; the NRDC et, al.
believe that India is among these five countries.
Apart from the question of the accuracy or inacurracy of these press reports and assumptions, the staff believes that, as in other forms of audit reporting, the identification by the IAEA of system deficiencies does not necessarily mean that an agreement has been violated or that the auditor is unable to form a reliable judgment as to the status of the audited activity. With respect to 1977, the IAEA has confirmed, taking into account all circumstances including qualitative observations, that in all 40 states where safeguards agreements were in full implegentation, all safeguarded nuclear material remained in the declared peaceful nuclear activity or was otherwise adequately accounted for. The IAEA reported that its safeguards operation did not detect.ny diversion of a significant quantity of nuclear material caring 1975 and 1977.
In addition, the Department of State has indicated ;"at it has information which confirms that seals and cameras art in full use at the Tarapur Atomic Power Station, including the spent fuel storage basins,
and that during 1977 camera: were effectively empicyec wi serious camera failu e.
However, the recorting of de iciencies does indicate :"a-there is a definite need for imorevemer.: in the impic.menta. ;-
of safeguards. The U.S. Government strongly supports the effort: cf the IAEA to rr.;c.1;er.cf :_feguards critically and intends to work through the A;er.cy to correct deficiencies noted in safeguards implementation reports.
The staff has addressed, in SECY 78-596', the question of the durability of Indian safeguards commitments. While the staff is not yet prepared to make a final recommendation on the Con. mission's determination under Criterion 1, it wishes to emphasize that this question is quite distinct and separable t.
~
from the issue of safeguards adecuacy.
2 TOPIC 3 i-The staff has no additional information or ccmment to provide on Topic (3) at this time.
T0pIC 4 The staff believes it is clear that the material proposed to be exported under XSiiM-1222 will not be aded into the TAPS reactorc until well after March 10, 1980, the date when the full-scope safeguards requirement of Section 127 of the Atomic Energy Act of 1954, as amended, teccmes effective.
If the U.S. were exporting fully fabricated fuel to India, there would be no operational need for approval of the present application during the period before the full-scope safegir-Js requirement comes into effect. However, since the fuel is to be fabricated at the Hyderabad facility in !ndia, lead times for normal anc ef#icient operaticn of this fa:i:y may well require shicment of the fuel far in atvance of t'.arct 10, 1930.
The staf# is presently una'fri ; e:enti; accui td
infomation concerning curren; inventories of material in India and future fabrication and reload schedules and expects to provide the Commission with a more detailed assessment of this question in the near future.
Respectfully submitted, he 0 A m
.Joanna ti. Becker Counsel for tiRC Staff Dated at Bethesda, Maryland this lith day of January,1979 S
S e
n.
UNITED STATES OF AMERICA NUCLCAR REGULATORY CC:*NISSION In the Mat *er of
)
)
EDLOW INTERNATIC"AL COMPANY
)
License Application No. XSNM-1222
)
(Agent for the Government of India
)
Docket No. 70-2738 on Application to Export Special
)
Nuclear Materials)
)'
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF COMMENTS ON PROPOSED EXPORT OF SPECIAL NUCLEAR MATERIAL TO INDIA FOR THE TARAPUR ATOMIC POWER STATICN" in the above-captioned proceeding have been served on the folicwing by deposit in the United States mail, first class or air mail, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this lith day of January 1979.
Clifton E. Curtis Daniel F. Ford, Esq.
James N. Barnes, Esq.
Executive Director Center for Law and Social Policy Union of Concerned Scientists 1751 N Street, N.W.
1208 Massacnusetts Avenue Washington, D.C.
20036 Cambridge, Massachusetts 02138 Thomas B. Steel, Jr., Esq.
Ms. Diane Wright Harmen S. Jaccb Scherr, Esq.
Assistant to the Vice President Natural Resources Defense Edlow International Ccmpany Council, Inc.
1100 17th Street, N.W.
917 15th Street, N.W.
Washington, D.C.
20036 Washington, D.C.
20005 Dr. Zbigniew Br:erinski George C. Deptula, Esq.
Assistant to the President for Union of Concerned Scientists National Security Affairs 1025 15th Street, N.W.
The White Hcuse Washingten, D.C.
20005 Washington, D.C.
20500 Mr. Louis Nosenzo Ronald J. Bettauer, Esq.
Deputy Assistant Secretary for Deputy Assistant Legal Adviser Nuclear Energy and Energy Department of State Technology Affairs Washington, D.C.
20520 Department of State Washington, D.C.
20520 Mr. Peter Tarnoff Special Assistant to the Secretary and Executive Secreta ry
- e artment cf State
~
Washington, S. :. 2:520
EDLOW INTERNATIONAL COMPANY..
'~
Barbara 0'Malley, Esq.
Mr. Herbert Scoville, Jr.
Departrant of Justice 6400 Cecrgetc.ir. Pike Room 3521 McLean, Virginia 22101 10th & Pennsylvania Ave., N.W.
Washington, D.C.
20530
- Mr. Chase Stephens, CFief Docketing and Service Section Honorable Richard L. Ottinger U.S. Nuclear Regulatory Ccmmission U.S. House of Representatives Washington, D.C.
20555 Washington, D.C.
20515
- Samuel J. Chilk, Secretary Mr. William W. Lowrance U.S. Nuclear Regulatory Commission Harvard University Washington, D.C.
20555 Program for Science and International i
Affai rs
- James L. Kelley, Esq.
i 9 Divinity Avenue Acting General Counsel j
Cambridge, Massachusetts 02138 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 The Honorable Clarence Long j
U.S. House of Representatives Washington, D.C.
20515 i
i h-A 4
{voannaM.Becker eounsel for NRC Staff i
a g
66 BMM8 M