ML20126K256
| ML20126K256 | |
| Person / Time | |
|---|---|
| Issue date: | 12/22/1978 |
| From: | Ahearne J NRC COMMISSION (OCM) |
| To: | NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| Shared Package | |
| ML20126K250 | List:
|
| References | |
| FOIA-80-336 NUDOCS 8105120480 | |
| Download: ML20126K256 (1) | |
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SUBJECT-TAPAPUR J
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P, danua ry 7, lease provide the
""."~(S response to Mr. ;osenzo 's cc.r;7.en 5 y, L
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Chairdan Hendrie cc:
Cc=issioner Gilinsky CcTT15sioner Kennedy
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i January 11, 1979 m
fir. Samuel J. Chilk Secretary U. S.11uclear Regulatory Commission Washin.gton, D.C.
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Re:
In the t'atter of Edlow International Company (Agent for the Government of India on Application to Export Special fluclear Material) License fio. XStiM-1222, Docket tio. 70-2738 1
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Dear Mr. Chilk:
$i Pursuant to the Commission's Order of December 8,1978, enclosed please find copies of i;RC staff con.ents to be submitted at the j '-
hearing in the above captioned matter.
The comments were prepared by Mr. J. R. Shea, Director, Office of International Programs, i
drawing upon the assistance of Mr. T. S. Sherr, Chief, Technology i,
Assessment Branch, Division of Safeguards, Office of t!uclear liaterial
. J Safety and Safeguards, in the subject area of adecuacy of IAEA
%iiMsg safeguards-at the Tarapur facility, and by the Office of the Executive Legal Director.
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Sincerely, i
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4d canna M. Becker Counsel for f?RC Staff Si!d
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Enclosure
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M U!!ITED STATES OF AMERICA f.g itVOLEAR REGULATORY C0".'ilSSr e EEFORE THE C0"",ISSIO::
In the Matter of
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EDLOW II;TERl!ATIO!!AL CO.".PAtiY
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License Application fio" XS!;H-1222
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(Agent for the Government of India
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Docket flo. 70-2738 on Application to Export Special
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!!uclear Materials)
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liRC STAFF C0li"E!!TS C?l PROPOSED EXPORT OF SPECIAL !!UCLEAR MATERIAL TO I!?DI A FOR THE TARAPUR ATCMIC PO'.-lER STATIOfi The !!RC staff hereby submits its views on issues raised in connection 1
FEN with the subject pending license application:
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License fio. XSt;M-1222, as amended, to authori:c Edlow l
International Company to export 16,803.6 kilograms of uranium, enriched to a maximum of 2.71%, to India for a.,d,
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use in the Tarapur Atomic Power Station (TAPS).
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On December 8,1978, the Commission ordered a public hearing m
focusing on four topics:
(1) the sufficiency, for purposes of the liuclear fion-Proliferation Act (lit PA), of Indian Prime Minister Desai's assurances that "he will not authorize nuclear explosive devices or 1,-ther nuclear 7
s.-;:g explosions;" (2) the adequacy, for purposes of the t;RC's determination M'
under the lit!PA, of the safeguards applied by the International Atomic Energy Agency at the Tarapur facility, and of U.S. Government information on those safeguards; (3) the status of U.S.-India negotiations regarding
[x-)4 the return of spent fuel from Tarapur to the United States for storage;
%9 and (4) the need for the fuel requested.
The following staff coments are keyed to these four topics.
_T0_ P_I C 1 Y :j The question of Indian assurances regarding nuclear explosions 1:
4
~ has been addressed in the Executive Dyanch ar alysis of XS!!M-1222 ya
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dated September 15,.1978 and in the staff's analysis dated
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lflovember 20,1978 (SECY 78-595).
The Commission's determi.na-tion under Criterion 2 of Section 127 of the Atomic Energy 3
Act need not rest, of cobrse, solely on the Desai statement 1
1
-quoted above.
The Executive Branch has cited the written 1
t cassurance contained in a letter dated September 17,1974 from Dr. Homil Sethna, Chairman of the Indian Atomic Energy-
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Commission, to Dr. Ray, Chairman of the U.S. Atomic Energy
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. Commission. that "... the special nuclear material that II5 ~
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 k.h-Station unless our two Governments hereafter specifically J,%e agree that such material'be used for other purposes "
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SECY 78-596 quoted several additional statements by a
Prime liinister Desai relevant to the question of peaceful l
nuclear explosives.
Since that paper was prepared, the S;Qt
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Prime liinister is reported to have made the followi.ng
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-statement in response to a Parliamentary question during i
the !!ovember 30,'1978 Rajya Sabha debate on nuclear policy:
f It has' been our policy for all the past years, started by Jawaharlal tiehru, that we will not have anything to
& hi do with nuclear weapons and that we will develop nuclear ti,,,,j,
energy.for peaceful purposes.
This is the policy to
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which we are sticking, and if any explosion can be made without any fallouts and without any such things which.
icad to atomic weapons and only for peaceful purposes, j
that explosion is never debarred.
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9 TOPIC 2 q g,q p.
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Application of Safenuards The staff wishes to comment first on the contention of the National Resources Defense Council, the Sierr$ Club yl%
and the Union of Concerned Scientists (fiRDC et. al.) (Motion of October 31,1978, pages 2-4) that the Commission is not in a position to detcraine that Criterion 1 or its equivalent is met because the material to be exported under XS!!!;-1222 is not covered by IAEA safeguards as required by Article III(2) of the !!uclear Non-Proliferation Treaty (!lPT).
IlRDCet.$1. note Q** p Q..I that the objective of safeguards agreements conforming to IAEA
,(
,e IHFCIRC/65/Rev. 2, the type of agreement covering the TAPS facility, is "to prevent the use of safeguarded materials to further any nilitary purpose," whereas the objective of 1
agreements conforming to IAEA INFCIRC/153, applicable to safe-M, guards agreements under the NPT, is "to prevent the diversion of safeguarded materials for use in any ruclear exolosives."
The argument of NRDC et. al. here implies that Q<<
only INFCIRC/153-type agreements satisfy the requirement of P!qj Criterion 1 of Section 127 of the Act, and that INFCIRC/66-type
. agreements do not. The staff believes that this interpretation of the NNPA is erroneous.
INFCIRC/153 safeguards agreements, 1
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for example, require the application of IAEA safeguards on all Mi!$
64 nuclear activities under the jurisdiction or control of the State concerned.
Had the Congress intended that only the A
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INFCIRC/153 type of safeguards agretment be considered to j
satisfy Criterion 1, full-scope s feguards coverage vould "h+::.o;;.
!!!j have become an innediate licensin3 requirement upon enactment 1
of the IH!PA.
But the Act, in Scction 128, explicitly defers full-scope safeguards coverage as a iicensing condition for an 18-24 month period after enactment of the UNPA.
I'.o reov er,
a large number of States receiving U.S. nuclear exports have l
safeguards agreements modeled on INFCIRC/66/Rev. 2; to i
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interpret Criterion 1 in the manner suggested by NRDC et. al.
MCI gI would have resulted in immediate termination of further U.S.
nucicar exports to all such States, and it is clear from the 1.egislative history of the UNPA that this result was not p@7 )
intended or expected.
(See, e.g., S. Rep. flo,95-467, 95th
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th Cong.,1st Sess., Oct. 3,1977, p.16) 9 Furthermore, the reference in Article III(2) of the HPT to " safeguards required by this Article" has been interpreted by the parties to the Treaty, in dealing with non-nuclear a
j M}gj weapons States who are not parties to the NPT, as a reference 3.. i
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only to the means Qf verifying the undertaking in Article I of the NPT as follows:
ARTICLE I 4
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hl Each nuclear weapon State Party to the Treaty undertakes 3jj not to transfer to any. recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, er indirectly; and not in any way to assist, encourage, 1
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i very means designed to enccurage international ccopera-j tion in the nuclear field is obviously not the intent of
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the lion-proliferation Treaty.
y mh" It is the view of the committee that tne treat,v does not l,
obligate nuclear-weapons states to treat nennu: lear i
signatory and non-signatory states on the scre basis.
!!either 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
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states on the same basis as signatory states, despite the fact that the treaty does not prohibit such action.
I The benefits and services to nonsignatories shculd surely be far less than those accruing to those countries who
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decide to sign the treaty.
By any standard it wcuid te
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consistent with the intent of the treaty to be r. ore willing to provide, for example, assistance in the nuclear excavation field to a signatory country as it becomes available rather than to a nonsignatory.
Similarly, the United States should te more willing to extend its assistance in the nuclear 4
desalting field to signatories of the treaty rather than to those countries who decide not to sign.
- !i$f It is the view of the committee, therefore, that the applica-h.r.
tion of article III should be handled with a carefully 4
considered appreciation of what will encourage states to adhere and what will encourage them to abstain.
While there are differences in scope (and other differences) sf1 between, safeguards agreements under IllFCIRC/66/?,ev. 2 anu those gy under I!!FCIRC/153, it should be noted that the Secretar'at of the International Atemic Energy Agency has interpreted the undertaking in IliFCIRC/66/Rev. 2 agreements not to use the safeguarded materials to further any military purpose as including 4
fib e the obligation not to divert them to nuclear weapons or other M
nucicar explosive devices.
The position of the IAEA Secretariat 4
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j is that the "no military purpose" undertaking includes "no
,d.qj nuclear explosive device" in all INFCIRC/66 agreements, past D
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and future.
At a meeting of the Board of Covernors in February 1975 j
in which, among other things, a trilateral safeguerds agreement i
involving an exchange of notes between the parties reflecting i
this concept was considered, the view of the Secretariat was I
j stated as being that Agency safeguards f c:.' the outset had i
Q been intended to ensure, to the extent possible within the
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Agency's powers, that safeguarded nuclear ma'terials were not f
l used for nuclear explosions or any other military purpose,
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and tha in the future, the use of an exchange of letters for M...d this purpose would be replaced by including a provision in I.Eh.jh the agreement itself.
I However, at a later Board of Governors' meeting at which l
an INFCIRC/66 agreement containing such a provision was
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,e any objection to the agreement before the Board, considered that the Secretariat's views constituted an important new l
scSh policy which his delegation could not accept without study c3 M]
of its aspects and implications.
He indicated his delegation's l
feeling that the new policy amcunted to an attempt to include I
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in It'FCIRC/66 agreements provisions relevant essentially
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such agreements.
B.
Adequacy of Safecuards Imolementation j
With respect to the adequacy of safeguards implementation
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in India, !!RDC et. al. contend that the Commission is unable i
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to make a positive determination, citing the failure of the lhi e..d.N Executive Brarich analysis to take into account the Safeguards 4KiGr 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."
1:l G:
rin :.3 It is true that HMSS 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 accouni ng safeguards in India.
But the v.?
Act is ambiguous with respect to whether the Comnissien's "9M!d y,]
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
- m fffy safeguards... will be applied."
(For a discussion of
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Commission findings of safeguards adequacy under Section 127 of the Act, see Chairman Hendrie's letter of June 19, 1978 to Senato.- Glenn.)
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also cite press reports indicating' that 1
qT*id the 1976 SIR expressed concern about the IAEA's inability to Qj$
verify that significant quantities of special nuclear r.aterial l
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had not been diverted in five unnamed countries in which there 1
are bulk handling facilitics; the tiRDC _et,.a._l_. believe that 4
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India is among these five countries.
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Apart from the question of the accuracy cr inacurracy of I
1 these press reports and assumptions, the staff believes that, i
gg as in other forms of audit reporting, the iden-ification by W%
'e.S the IAEA of system deficiencies does not necessarily mean thtt 9
i an agreement has been violated or that the auditor is i
unable to fom a reliable judgment as to the status of the audited
,j activity.
With respect to 1977, the IAEA has confirmed, taking ShMQ pg into account all circumstances including qualitative observations, l
i that in all 40 states where safeguards agreements were in full t
implementation, all safeguarded nuclear material remained in the declared pcaceful nuclear activity or was otherwise 4
hp[.:
hj adequately accounted for.
The IAEA reported that its safeguards L-operation did not detect any diversion of a significant quantity i
t of nuclear material during 1975 and 1977 In addition, the Department of State has indicated that it has information which i
l9W confirms that seals and cameras are in full use at the Tarapur i-mR Z
Atomic Power Station, incfuding the spent. fuel storage basiris, and that during 1977 cameras were effectively employed without serious camera failure, n.d However, the reporting of deficiencies does indicate that
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there is a definite need for inprovement in the implementation
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The U.S. Coverr. ment stre j_i., supports the 4
efforts of the IAEA to review Agency safeguards critically and intends to work through the Agency to correct deficiencies
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noted in safeguards implementction reports.
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ij' The staff has addressed, in SECY 78-595, the quest. ion of the durability of Indian safeguards commitments.
While the staff is not yet prepared to make a final recommendation on the Commission's determination under Criterion 1, it wishes
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to emphasi::e that this question is qt.ite distinct and separable t
gh from the issue of safeguards adecuacy.
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L TOPIC 3 The staff has no additional information or ccmment to provide on Topic (3) at this time, TOPIC 4
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The staff believes it is clear that the material proposed to be exported under XSliM-1222 will not be loaded into the TAPS reactors until wall after March 10, 1980, the date when the full-scope safeguards requircment of Section 127 of the
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W Atomic Energy Aci of 1954, as atended, becomes effective.
6 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
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safeguards requirement comes into effect.
However, since the 4
- ',. *; h fuel is to be fabricated at the Hyderabad facility in India, lead times for normal and efficient operation of this facility may well require shipment of the fuel far in advance of liarch q, ;,#Q 10, 1980. The staff is presw..y analyzing recently acquired
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infornttion con:erning current inventcries of r.aterial in India and future fabrication and reload schedules and expccts v 'd 9 U. t.
t to provide tha Comission with a core detailed assessment of s w.i
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- this question in the near future.
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Respcctfully submitted, S M*
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.de 4 Joanna M. Becker i
Cour.:.el for I;RC Staff Dated at Bethesda, fieryland 1::f'j this lith day of January,1979 gj;:
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i.nn NUCLE AR i.EGULATOM' C0".:'.ISSIO"k y
A In the l'atter of
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j EDLOU II;TERNATIO lAL CC:'pANY License Applicaticn No. XS:"i-1222 9"C.d (Agent for the Goverrcnent of India Docket l'o. 70-2733 i
on Application to Export Special
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Nuclear Materials)
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_ CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF CO:'.MENTS ON PROPOSED EXPORT OF SPECI AL NUCLEAR l%TERI A'.
TO INDI A FOR THE TAPAPUR ATO.'i!C POWER STATION" in the above-capticned proceeding have been served on the folicwing by Ceposic in the Unitec States meil, first class or air mail, or, as indicated by
' asterisk, through deposit in the Nuclear Reculatory
%,i Comission's internal mail system, this lith day of January 1979.
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Clif tor. E. Curtis Dariel F. Ford, Esq.
James :,. Barnes, " c.
Executive Director Center for Law cnd Social Policy Union of Concerned Scientists 1751 N Street, N.W.
1208 Massachusetts Avenue Washin; ton, D.C.
20025 Cambridge, Massachusetts 02133 s
H..i shomas B. Stcci, Jr., Esq.
Ms. Diane Uricht Harmon i
- 5. Jaccb Scherr, Esq.
Assistant to the Vice President Natural Resources Defense Edlow International Ccr.pany Council, Inc 1100 17th Street, N.W.
917 15th Stret Washington, D.C.
20036 Washington, D.C.
20005 Dr. Zbigniew Brzezinski p
George C. Deptula, Esc.
Assistant to the Presider.: for S4 Union cf Concerned Scientists flational Security Affairs d
102515th Street, N.W.
The White House y
Washington, D.C.
20C05 Washington, D.C.
20500 Mr. Louis f,'osenzo Ronald J. Bettauer, Esq.
Deputy Assistant Secretary fer Deputy Assistant Le;21 Adviser Nuclear Enercy cnd Energy Department of State Technology Affairs Washington, D.C.
20520 g@)
Department of State Washington, D.C.
20520 t'r. Peter Tarnoff
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S ecial Assistant to the P
Secretary and Executive Secre ta ry Department of State Washington, D. C. 20520
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LDLO'd INTERNATIONAL CD:4PANY,
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Barbara O'lialley, Esq.
Mr. Herbert Scoville, Jr.
Department of Justice 6400 Georgetown Pike I
Room 3521 ficlean, Virginia 22101 m:d 10th & Pennsylvania Ave., N.W.
E '.f Washirston, D.C.
20530
- Mr. Chase Stephens, Chief JM, Docketing and Service Section Honorable Richard L. Ottinger U.S. Nuclear Regulatory Commission U.S. House of Representatives liashington, 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 Affairs s
- James L. Kelley, Esq.
9 Divinity Avenue Acting General Counsel Cambridge, Massachusetts 02i38 U.S. Nuclear Regulatory Commission i
Washington, D.C.
20555 j! M)
The Honorable Clarence Long
'b U.S. House of Representctives Washington, D.C.
20515
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