ML20148F847
| ML20148F847 | |
| Person / Time | |
|---|---|
| Site: | 07002738 |
| Issue date: | 10/31/1978 |
| From: | Barnes J, Meeker L, Stoel T BARNES, J. N., MEEKER, L. C., STOEL, T. B. |
| To: | |
| References | |
| NUDOCS 7811090216 | |
| Download: ML20148F847 (9) | |
Text
.
DLIC DOCUgg
,Ih
- os, Before the UNITED STATES NUCLEAR REGULATORY COMMISSION Washington, D.C.
20555
,ggy In the Matter of
)
)
EDLOW INTERNATIONAL COMPANY
)
License No. XSNM-1222
)
Docket No. 70-2738 (Agent for the Government of India )
on Application to Export Special
)
Nuclear Materials)
)
MEMORANDUM IN SUPPORT OF THE MOTION OF THE NATURAL RESOURCES DEFENSE COUNCIL, UNION OF CONCERNED SCIENTISTS, AND THE SIERRA CLUB FOR A FURTHER HEARING On February 14, 1978, the Natural Resources Defense Council, the Union of Concerned Scientists, and the Sierra Club (the Movants) filed with the U.S. Nuclear Regulatory Commission (the Commission) a motion for a further hearing on the continued export of low-enriched uranium to India for use as fuel for the Tarapur Atomic Power Station (TAPS), as part of the Commission's consideration of License Application XSNM-1060 (Docket No. 70-2485) and the above-captioned matter.-1/
The Commission subsequently voted to deny the motion for a further hearing in regard to XSNM-1060 and to defer its con-sideration of whether a public hearing should be held on
-1/
The Movants filed simultaneously a motion to consolidate the Commission proceedings with regard to XSNM-1060 and XSNM-1222.
This motion was granted on March 6, 1978.
Edlow International Company CL1-78-4, 7NRC 311 (1978).
78H M#2%
! l XSNM-1222.
Edlow International Company, CLI-78-9, 7 NRC 455 (1978).
On September 13, 1978, the Department of State for-warded to the Commission the Executive Branch's Export License Application Analysis of XSNM-1222 (4 04. 51 Kgs of U-2 35 contained in 168,036 Kgs of U, enriched to a maximum of 2 15 percent).
The Movants submit this memorandum to supplement their February 14, 1978, motion for a further hearing.
While the export of TAPS fuel to India was the subject of Congressional hearings on Executive Order 12055, over-riding the decision of the Commission to decline to issue XSNM-1060, Edlow International Company CLI-78-8, 7 NRC 436 (1978), many of the issues raised by Movants in their February 14, 1978 motion were not adequately addressed.
Further, the Executive Branch Analysis on XSNM-1222 fails to provide sub-stantial information concerning developments during the last four months in regard to the adequacy of safeguards and assurances and the return of TAPS spent fuel.
The Movants contend that the Commission cannot now make the determination that the issuance of XSNM-1222 would not be " inimical to the common defense and security," as required under Section 57 (c) (1) of the Atomic Energy Act, as amended (the Act).
In particular, the Commission is not in a position to determine that the export licensing criterion (1) under Section 127 of the Act or its equivalent has been met.
This 1
i I I criterion is that:
(1)
IAEA safeguards as required by Article III(2) of the Treaty will be applied with respect to any such material or facilities proposed to be exported, to any such material or facilities previously exported and subject to the applicable agreement for cooperation, i
and to any special nuclear material used in or produced l
l through the use thereof.
In the instant case, the nuclear material to be exported is not covered by IAEA safeguards as required by Article III(2) of the Nuclear Non-Proliferation Treaty (the NPT).
Arrangements for NPT safeguards are outlined in IAEA INFCIRC/153 (1971).
Their i
express objective is to prevent the diversion of safeguarded materials for use in any nuclear explosives.
The IAEA safe-guards arrangement applicable to the TAPS fuel proposed to be exported under XSNM-1222 is instead that covered by IAEA INFCRC/66/Rev.2 (1968).
Their objective is to prevent the use of safeguarded materials "to further any military purpose" (emphasis added).
This difference is highly relevant in regard to the pending license.
The Indian Government continues to draw a distinction between military nuclear weapons and peaceful nuclear devices.
It was reported this summer that Prime Minister Desai, in replying to questions in the Lok Sabha on July 26, 1978, said while India would not engage in explosions of the type used in its first nuclear test at Pokhran, Indian nuclear policy did not rule out nuclear blasts for engineering purposes
, SWB/ Monitoring Report, FE/5876/i (July 28, 1978).
Also the Indian Government has not yet accepted the U.S. position that materials supplied for TAPS cannot be used for nuclear explo-sives.
See Sethna letter, July 10, 1974.
The Indian Government could declare to the IAEA its intention to use TAPS nuclear materials or equipment in the manufacture of peaceful nuclear explosives.
This would not be a technical violation of INFCIRC/
66/Rev. 2 safeguards,which preclude only military uses.
The IAEA would be under no obligation to inform the United States of such an action, and indeed might be restrained from doing so by INFCIRC/66/Rev. 2 restrictions on the disclosure of safeguards implementation data.
In the absence of a clear com-mitment by India not to develop nuclear explosives for engineering or other peaceful purposes, it cannot be said that the present IAEA safeguards applicable to TAPS are the equivalent of those required by criterion (1) of Section 127 of the Act.
l In any event, the Commission cannot make the necessary finding under Section 127 (1) of the Act that IAEA safeguards on l
the material covered by :CSNM-1222 are adequate.
During the floor debate on the Nuclear Non-Proliferation Act of 1978, i
Senator McClure stated that the Non-Proliferation Act requires the Commission to make " independent judgr.ents based on evidence and other information available to it regarding the implementa-tion of safeguards in foreign nations for exported facilities and fuels."
Congressional Record, February 2, 1978, at S 1073.
, Senators McClure, Glenn, and Percy later agreed that the Commission was to assess independently the adequacy of IAEA safeguards.
Congressional Record, February 7, 1978,-at S 1464.
The question whether the Commission should conduct country or site specific visits in its consideration of the application of IAEA safeguards was left unresolved.
See Act, S12 6 (a) (2 ).
Movants contend that the Commission now is unable to make a reasoned determination as to the adequacy of the implementa-tion of IAEA safeguards on U.S.-supplied materials in India.
Since early this year, the Commission's own Office of Nuclear Material Safety and Safeguards (the NMSS) has been unwilling to certify that IAEA safeguards are adequate, following a review of the Special Safeguards Implementation Report for 1976 (the SSIR).
The Executive Branch Analysis on XSNM-1222 merely repeats the conclusions of the 1976 SSIR which was issued in 1977. There is no reference to the Safeguards Implementation Report for 1977,
)
which the IAEA apparently completed in May 1978.
There is no description of any improvements in the safeguard system made l
by the IAEA during the past year so as to permit the agency to rely fully upon quantitative information in concluding that there had been no diversion of safeguarded materials to the man-ufacture of weapons or explosive devices.
There is no indica-tion whether the NMSS has reviewed the 1977 report and has, as a
,.- result, altered its position concerning the adequacy of IAEA safeguards.
Section 127 (1) of the Act requires the Commission to go beyond blind faith in making judgments as to the. effectiveness of IAEA safeguards.
At the proposed hearings, the Commission should obtain the views of members of the public concerning the scope and depth of information necessary to judge the adequacy of IAEA safeguards.
The Commission should seek data from the Executive Branch on the implementation of IAEA safe-guards accounting, surveillance, and inspection both generally and in regard to India and the comments of outside experts on such data.
The Commission should consider whether a U.S.
Government inspection of safeguards implementation in India is
}
needed to obtain a basis for its determination here as to criterion (1) of Section 127.
The' hearing requested by the Movants should also address the question of the return of spent fuel from TAPS.
The Executive Branch Analysis of XSNM-1222 does not mention any progress in this area.
The State Department thus ignores'the deep concern of both the Commission and the Movants about the l
l
.- presence of a large amount of U.S.-supplied spent fuel in India.-2/
The question of continued exports of nuclear materials to India remains a matter of broad concern to Congress and the public.
While it is true that the Presidential override of the Commission decision on XSNM-1060 was sustained, this should not be interpreted as a blanket endorsement of future nuclear cooperation with India.
House Concurrent Resolution S99 which would have disapproved the issuance of XSNM-1060 was defeated by only a narrow margin of 227-181 in the House of Representatives, in spite of the opposition of the Admini-stration and the House International Relations Committee.
Congressional Record, July 12, 1978, at H 6530.
-2/
The Executive Branch Analysis provides virtually no information about the present need for the fuel covered by XSNM-1222 in order to maintain the normal operations of TAPS.
If the State Department argues against a hear-ing on the basis of " urgency," Movants suggest that additional data must be provided.
It might be worth-while to hold a separate preliminary hearing rather than-to depend upon affidavits for such information, given the difficulties the Commission has faced in resolving the need issue at earlier stages of this proceeding.
i l
+,
4-g 4
-8 WHEREFORE, Movants respectfully-submit that a hearing on exports of low-enriched uranium to India is in the public interest, and they urge that their Motion For a Further Hearing i
be granted.
Respectfully submitted, f/[/m45 h05 i( rd J
fS N. BARNES
?
LE NARD C. MEEKER Mailing Address:
Center for Law and Social Policy' 1751 N Street, N.W.
Washington, D.C.
20036 (202) 872-0670 Attorneys for the Sierra Club, Union of Concerned Scientists, and NRDC
/
Wf MAS B.
SfefL, JR.
S JACOB SCHERR Mailing Address:
Natural Resources Defense Council 917 15th Street, N.W.
Washington, D.C.
20005 l
(202) 737-5000 Attorneys for NRDC Dated:
October 31, 1978 Washington, D.C.
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.o CERTIFICATE OF-SERVICE I hereby certify that copies of the foregoing Memorandum i
in Support of the Motion for A Further Hearing-were delivered
~
by hand this 31st day of October, 1978, to the following:
Martin G. Malsch, Esquire Office of the Executive Legal Director Nuclear Regulatory Commission Washington, D.C.
20555 Chase Stephens, Chief Docketing and Service Section Office of the Secretary of the Commission Nuclear Regulatory Commission Washington, D.C.
20555 Carlton R.
Stoiber, Esquire Assistant General Counsel Nuclear Regulatory Commission Washington, D.C.
20555 Irwin B.
Rothschild,III Office of the General Counsel Nuclear Regulatory Commission Washington, D.C.
20555 and by mail, properly stamped and addressed, to:
Peter Tarnoff Executive Secretary Department of State Washington, D.C.
20520 Thomas S.
Martin, Esquire Special Assistant to the Assistant Attorney General Department of Justice, Room 3143 Washington, D.C.
20530 Diane Wright Harmon Assistant to the Vice President Edlow International Company 1100 17th Street, N.W.
Washington, D.C.
20036
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S. Jacob Sqhpfr
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