ML20126K335
| ML20126K335 | |
| Person / Time | |
|---|---|
| Issue date: | 01/21/1980 |
| From: | James Shea NRC OFFICE OF INTERNATIONAL PROGRAMS (OIP) |
| To: | |
| Shared Package | |
| ML20126K250 | List:
|
| References | |
| FOIA-80-336 SECY-79-674A, NUDOCS 8105120556 | |
| Download: ML20126K335 (10) | |
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For:' The Commissioners From: James R. Shea, Director '
Office of International Programs Thru: Executive Director for Operations .p::) Lcc'4 Gess(
(U)
Subject:
EXPORT OF COMPONENTS TO INDIA FOR THE TARAPUR REACTORS (XCOM0250) (SECY-79-647)
(U)
Purpose:
To request a Commission decision on the subject proposed export.
(U) Backcround: In April of last year, in connection with our review of several license applications d6r export of components for Tarapur (XCOM00020, XCOM0084 and,-XCOM0130), and in light of the Com-mission approval in March of the latest license application for Tarapur fuel, IP advised the Comission of its intention to issue then-pending and future export licenses for components f'or which favorable Executive Branch views had been received without q referring such requests to the Comission, provided the components involved were standard items required for the nomal operation of the Tarapur reectors while they are using US-supplied fuel.
(SECY-79-260, April 13,1979). By SECY memorandum of April 30, '
1979, however, the staff was directed to continue to submit '
Indian component license applications to the Commission. for action. .
(U) On May 10,1979, we received an application from General Electric for the export of six traversing in-core probe detector assemblies l (TIPS) to India for use in Tarapur Unitss I and II(XCOH0200).
These components, as noted in SECY-79-674, are used to calibrate reactor power manitors within the core. Since faulty TIPS could
, possibly lead to a serious accident if a reactor transient occurred, the staff concluded that tbc TIPS are essential to the safe _ ope ra ti on o f_these rea ctors ... _The . Co=:i s s i on _ was_ a dvi sed o f l 'GE's app 71 cation in SECY-79-33E (May .16). on .Ma v. 25, i n sonnectior, with our review of the next proposed export of low enriched fuel to India (XSNM-1379), we requested that State provide inferration that may be relevant to NRC's findings in that case. By mer.x>- -
f June 22, Commissioner Ahearne requested that we i
810512 09 r ndum encourage State to respond to that inquiry since much of the information that had been requested was relevant to our review
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Background:
of XCOM0250. A response was received from State on July 5.
(Continued) Following the fall of the Indian Goverment, we requested additional infomation on August 15 and " ~.ed State at that .
time that the Comission would defer its final consideration
. of three export license applications (one of which was-ICOM0250) until receipt of a response to that letter.
(U) On October 22,' State provided favorable views on XCOM0250.
State has not yet responded to our August 15 letter; however, with the instillation of the new Gandhi government we expect an early response, probably before or in conjunction with the Executive Branch briefing now scheduled for January 29 (U). E lE 'By SECY-79-674 (December 19.-1979), the ' staff a'dvised the Com-mission of the status of the subject export license application.
In our review we advised the Comission of the in:portance of these components to the safe operation of the Tarapur reactors, while at the same time noting that substantive questions rmain about whether component exports to Tarapur meet the NNPA export
.- licensing criteria. Accordingly, the staff indicated that, unless the Comission directed otherwise, it would defer action on XCOM3250 and other Tarapui component cases, at least until the Executive Branch had provided its assessment of the implications of changes in the Indian Government leadership. By SECY memo-randum of January 9, the staff was directed to srbmit XCOM0250 to the Comission for action.
(U) Discussion: In order.to issue a component export license under Section 109b.,
the Comission must find, " based on a reasonable judgment of .the
- assurances provided and other information avai'.able to the Federal Government, including the Comission, that the following criteria or their equivalent are net: (1) IAEA safeguards as requieed by Article III(2) of the Treaty will be applied with respect to such components, substance, or item; (2) no such component, sub-l stance, or item will be used for any nuclear explosive device or for research on or development of any nuclear explosive device; and (3) no such . component, substance, or item will be retransferred ,
to the jurisdiction of any other nation or group of nations unless the prior consent of the United States is obtained for such retransfer; and after determining in writing that the issuance of each such general or specific license or category of licenses will not be inimical to the comon defense and security."
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,U) , . Under Section 109b. the Comission is also directed to.d5termine'ci.I '
which component parts, ad defined in subsection 11v.(2) or 11cc.. ~,
(2), are especially relevant from the standpoint'of, export control .".
because of their significance for nuclear explosive purposes. ...
Theoretically, the Comission could detdrmine that, in view of their safety purpose, these components are not *especially rerevant."
so that the criteria would not apply and the Cor: mission. would not have export licensing jurisdiction over them. However, revised Part 110, adopted by the Commission in May;1978,to imple:nent the
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NNPA, inc1'udes, as components licensable under Section 109b. 'of the Atomic Energy Act of 1954, as amended, components (other than a component defined as a facility) " specially designed or prepared for use in a nuclear reactor" (see Appendix A of Part 110).
b) Thus, components specially designed or prepared for use in a nuclear reactor are, by their inclusion in Appendix A of Part 110, considered to be "especially relevant from the standpoint of export control because of their significance for nuclear explosive purposes." As noted in the statement of considerations published with revised Part 110 on May 19,1978, the components,
. items and substances selected for NRC's cxport control are essentially those on the Nuclear Suppliers' Group and IAEA Zangger Connittee trigger lists, thus reflecting an international consensus on itses considered to be significant for nuclear explosive purposes. Although not spelled out in the statement of considerations, all components specially designed for use in a nuclear reactor have been considered significant for nuclear explosive purposes because they contribute to the operation of nuclear reactors producing plutonium, which is. of course, significant for nuclear explosite purposes. It is clear that the XCOM0290 components are specially designed for use in a nuclear reactor.
(U) Uroency: We have called thisecase to Srkte Department's attention, but 'm date we have not received any expressions of urgency regarding this export from the Indian Government or the State Department.
The applicant has, however, expressed urgency.
- U) By letter of January 11, 1980, General Electric advised the staff that the one spare TIP available at Tarapur was used to replace ,
a failed TIP during the fall 1979 shutdown for refueling Unit II.
That reactor is currently operating with a good TIP and a carginal one. (GE advised us that a targinal component is one that is either faulty or subject to calfunction at any time.)
GE also &hed us that Tarapur Unit I was shut down for refueling and maintenance on November 28, 1979 and is scheduled to return to service on February 2E,1980. GE has expressed a strong desire to be ablgto export these components so that the marginal TIPS in TAPS I ray be replaced prior to that date. GE has stated, however, that in order for the TIPS to be replaced before that date, very early approval of XCOM0250 would be required since after receipt of notification of approval, GE must complete arrangements for air shipment to Bombay, and arrangements must be cade for inspection of the TIPS, preparation, removal of marginal TIPS to storage casks, and installation of o rr,cc y. .. .. .. .. . ... . . ... . .;..... ......... ........ ...
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Urcency: the spares. In GE's estimation, scarcely enough time remains (Conti nued) to accomplish the above even if the license is issued on an urgent basis. GE has advised that without the spares. Tarapur
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/ Unit II would have to remain inoperative until the TIPS are exported and replaced, or the Indians could attempt potentially unsafe startup of the Unit with faulty instrumentation, if Government of India safety regulations permit. (GE is presently unaware of Indian Government regulations in this regard, but is attempting to detennine if such a startup would be allowed.)
(U) In SECY-79-674, as indicated above, IP pointed out that the export of the detectors to Tarapur is reasonable and necessary for the continued safe operation of that facility. On January 11 we met with technical staff members of the Core Performance Branch, DSS, to learn cure fully the importance of TIPS in the operation of a reactor. IP was advised that TIPS are essential in determining the nature of reactor core activities. Specifically, the TIP (Traversing In-core Probe) system is used to calibrate the LPRMs (Local Power Range Monitors). The LPRMs are combined in particular ways to form the Average Power Range Monitor (APRM) system which is used as a reactor power input to the reactor pro-tection system. The reector protection system vill not assure that the reactor is shut down in response to severe transients or accidents if the reactor power input is incorrect.
(U) In addition, the LPRM outputs are used by the plant computer to obtain the core power distribution during operation. Decalibra-l tion of only a few of the LPRMs could lead to operation of the reactor in a manner such that the initial conditions assumed font anticipated transien+s and accidents.are incorrect.
l (D) Without properly functioning TIPS and proper calibration of the 4
imeore instrumentation a number of possibly serious consequences could result in the event of a reactor transient, including, for instance, the failure of the APRM scram system, the failure of the Rod Block Monitor system (leading to improperly spaced control rods and a possible overpeak power incursion) and the failure of fuel elenents and fuel melting due to operation aboce -
critical heat flux levels. '
Given the above, several possible options are available to the l Comission:
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4 Urcency: (1) Determine whether the criteria in Section 109b. are or TContinued) are not met and decide this case solely on that basis.
The staff notes that the crf teria in Section 109b. are the same as those in Section 127 (which pertain to fuel exports)', except that components are not required to meet the physical security and no reprocessing criteria. Accordingly,, if it is determined that the three criteria in Section 109b. are raet for the com-ponents in XCOM 0250, it appears that a siciib: conclusion on the three criteria would be required for the components covered by XCOM 0240 and for the currently pending Tarapur fue'l case, even though the Comission still has questions related to all these -
cases outstanding at State Department. The Conaission, as noted above, concluded the criteria were met in f4 arch 1979 'for XSfiM-1222 and perhaps could conclude that, while uncertainties had increased since then, the criteria continue to be met. In this event, the license could be issued promptly and safety. risks minimized while statutory obligations would be complied with. If the Coznission decided that it could not find that the criteria had been met at
'this time, and thereby denied the license, the potential safety problem at Tarapur would, of course, remain until the matter night be further resolved.
(U) (2) Find that the components involved are not covered by Section 109b. and thus are not subject to tiRC licensing reauirements .
As noted above, under the f{fiPA this would require a finding that the components involved are not especially relevant focm. the standpoint of export control because of their significance for nuclear explosive purposes. It might be argued on the one hand that, because they contribute to the safe operation of the reactor rather than to its direct functioning, and are not in themselves of concern from the nonprolifera: tion point of view, these components are not of significance for nucicar explosive purposes.
(U) On the other hand, it can be argued that because reactors cannot be operated safely without these components, they do directly contribute to the functioning of the reactor and its production of plutonium, whdhh is of nu: lear explosives significance.
Further, the argument that the components e re not in themselves
.i of concern from the proliferation standpoint might also be made
! for other components not falling within the definition of
-r " utilization facility," to conclude that these components are
' not of nuclear explosive significance would also be inconsistent with the international consensus reflected in the Ifuelear Suppliers and Zangger Comittee trigger lists. This option would open up the complicated question of what other com;:onents now covered oy Pari,110 shouio De in d.is cei.egory 6ad s us c findins for j
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l these components would also have to be applicable to all I countries, not just India. Consultation with the Executive Branch, which can be expected to be tire-consuming, would also be required under Part 110 for such deteminations.
Finally, the effect of such a determination would be that the NRC would no longer have jurisdiction to issue a license for export of such components, nor would the Department of Cocraerce.
(U) (3) Determine that XCOM 0250 s'hould be issued on the baf.is that the comoonents are uroentiv needed for safety reasons.
(U) Under this option, which assumes the Comission cannot find the criteria ere net, the case might be made that safety comes first, and since these components are urgently needed and' essential to the safe operation of the Tarapur reactors, are not directly applicable for nuclear explosive purposes, and would be expected to be usable only for about the next year (during a. period when previously exported U.S.-origin fuel would- be used in the Tarapur reactors), it would be appropriate for overall policy considerations to allow the export to be approved, despite the inability to make positive findings on the three Section 109 criteria. This approach could avoid a possible safety problem, or even perhaps a significant accident at Tarapur, and avoid possible criticis= of the Connaission as unwilling to act when fundamental safety problems are involved.
However, if the Comission cannot find the criteria are met, it would, if it chose this option, be icnoring its statutory obTigationr out af a concern for safety (a criterion not included as a basis for component export license approvals in Section 109, as noted by the staff in SECY-79-100) and could be criticized on this account.
In addition, while the Commission currently has the matter under review in its hearing on the Philippine reactor export, the Com-mission has taken the position in the Buerceraktion and Taracur cases that it does not have authority or responsibility to take into account health and safety asppets of exported reactors; to approve this export on safety grounds would be in direct conflict with this position and tend to prejudge the outcome of tie Comission's deliberations in the Philippine case.
(U) -
(4) Defer action on this aoolication o'endine receipt of addf-tional information from State concerninc the recent chance in tne Indian Government.
(U) State has indicated it plans to respond to our August 15 letter before or in conjunction with their scheduled January 29 Conrcission bri e fi ng. This option would result in a delay in approval of the export until at least then, with possible safety ramifications during this additional time and with no assurance that the State
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response will be such as to bring about positive Co::raission findings on these components. At the same time, it holds out at least a possibility that statutory requircaents could be found to be satisfied before safety risks. especially for the Tarapur_II_ reactor, miaht_become too. great. ,
(U) Recer.nen da tion: The staff believes that this case presehts a very difficult dilecraa for the Com,ission, in which apparently urgent safety considerations might be in conflict with the need to observe statutory requirements,and with past Com=ission positions regarding health and safety consideratf orts in export licensing.
The staff believes the Comission should weigh all factors out-lined above and take a detemination on this issue as soon as possi ble. Recognizing the cajority view that the NNPA criteria were met in XSfM 1222, and changes in circu= stances since then, a key issue in this case is whether the Connission now believes that these changes are such as to call for a conclusion that the criteria are nc longer net. The staff does not have sufficient data to conclude the criteria are met, particularly in the absence of a response from State to our questions, and believes that the Cocrnission should find the section 109 criteria are met before approving this export. 4ther consideratilons such as safety can be thken into account as appropriate under the coccan defense and security finding. Tne Comission should also consider infomino key Cont;ressional leaders involved in de'velopment and impleraentation '
of the NNPA or concerned about export bezalth and. safety issues of the Comission decision in this case rand the basis for it.
(U) -
Coordination: ELD views are attached. v fM=Itifsg JAN 181980
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James R. Shea, Director Office of International Programs
Enclosure:
ELD Viers
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OELD'S VIEWS The paper on the one hand offers as an option that the Commission determine that the license should be issued on the basis that the components are urgently needed for safety reasons, while on the other hand, conceding that such an option could only be chosen by ignoring the statutory obligation to make affirmative findings on the three criteria for the issuance of a component export license in section 1096. ,
It seems important in the context of the case presented for action for the Comission to focus on two points:.
(1) Unless the Comission changes its general position as to consideration of health and safety in export licensing set out in the Bueraeraktion and Tarapur cases, the articulated basis for the grant or oenial of an export license ought not to be on safety grounds but solely on considera-tion of the three criteria in section109b.
(2) The Comiss.io.n has sufficient flexibility to either find that the statutory criteria have been met or reach the opposite conclusion.
On the first point, it should be noted that even if the Comission changed or reversed it.s position in the Bueroeraktion and Taraour cases, it would be difficult to apply its new position to component licensing. As noted in SECY-79-100, even if sections 103d.,104d.,and 57c.(2) are regarded as providing an arguable statutory basis for considering. public health and sLfety in licensing the export of facilities or special nuclear material,'because those sections contain, as a statutory standard', non-inimicality to the public health and safety (construed to
. mean the public health and safety of the United States), section 109, under which components are licensed, contains no reference to public health and safety as a criteria for issuance of a component export license. Further, in no event has the Comission ever taken the position that it can issue a license unless all applicabl@
criteria are met. . .
As to the second point, it was OELD's position at the time of consideration of XSNMm1222 that the Commission has flexibility under the law and surrounding ci.rcumstances, to conclude either that the three (in that case, five) criteria are met, or to reach the opposite conclusion, based on the analysis iri the OELD views attached to SECY-596A and in the DELD memorandum to the Chairman and the Commissioners dated February 1,1979. OELD's basic legal conclusions have not changed, although circumstances have changed somewhat since those views were developed. The changed circumstances that are pertinent include (1) the fact that the March 10, 1980 cut-off date is near without India agreeing to full scope
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safeguards, making cut-off of fuel exports to India imminent and (2) the election of a new Government .in India which has not indicated its views concerning continuation of agreement for cooperation obligations by India after the F. arch 10,1980 cut-off date.
However, thdre is no information in the paper that shows conclusively that changed circumstances' require a finding that the criteria have not been met. As a legal matter, the Commission has flexibility to find 'either that the criteria are, or are not met, or that it needs the information requested of State on August 15, 1979 or additional information before reaching a corclusion. .
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