ML20205F784
| ML20205F784 | |
| Person / Time | |
|---|---|
| Issue date: | 04/20/1978 |
| From: | Bradford P, Gilinsky V NRC COMMISSION (OCM) |
| To: | Hendrie J, Kennedy R, The Chairman NRC COMMISSION (OCM) |
| References | |
| NUDOCS 9904070003 | |
| Download: ML20205F784 (18) | |
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NULmiAR REGULATORY COMMISSION j
j WASHINGTON, D. C. 20555
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j OFFICF. OF THE COMMIT >lON E R April 20, 1978 NOTE FOR:
Chairman Hendrie Commissioner Kennedy cc FROM:
Commissioner Gilinsky./l CommissionerBradford,g
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Attached is a memorandum setting forth in greater l
detail the views expressed today on the Tarapur license.
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(.706 M) i 9904070003 790420 PDR CONHS NRCC CORRESPONDENCE PDR 1
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April 20, 1978 XSNM-1060 MEMORANDUM DEFINING THE VIEWS OF COMMISSIONERS BRADFORD AND GILINSKY
Background
In 1963, pursuant to the export provisions of the Atomic Energy Act of 1954, as amended, the United States entered into an Agreement for Cooperation and peaceful nuclear assistance with the Government of India covering the construction and operation of the Tarapur Atomic Power Station.
In 1969, the two power reactors supplied to India under this agreement went into operation, fueled by enriched uranium purchased from the United States.
Since that time the U.S.
has continued to supply the fuel needs of these reactors.
Before us is an applicatior. for approval of the next proposed shipment, XSNM-1060, involving the export of 7.6 tons of enriched uranium. 1/
In January of this year, President Carter visited India and assured that government the fuel shipment would be forthcoming.
Later that month, the Executive Branch, in recommending Nuclear Regulatory Commission approval of the
~1/
The Executive Branch recommendation on this export arrived on January 25, 1978.
Further Executive Branch comments in response to a motion for further hearings l
with regard to this application and XSNM-1222 were forwarded to the Commission on March 6, four days before the new law took effect.
The additional analysis required by the new law was forwarded March 29 and March 30 and supplemented by materials sent in response to questions on April 7.
license, stated that "the framework of commitments, assurances, and safeguards is adequate for the purposes of this export." 2/
On March 10, the Nuclear Non-Proliferation Act of 1978, imposing stricter rules over nuclear exports than the earlier statute, was signed into law.
In a statement supplementing its favorable recommendation, the Executive Branch expressed its judgment that the application meets the requirements of the new law, called attention to "the special nature of the assurances," and again stressed the urgency attached to the application. 3/
Relation to the New Law Controversy has accompanied all fuel shipments to India since that country's detonation of a nuclear explosive device in 1974, in the production of which equipment and materials supplied by Canada and the United States covered by " peaceful use" restrictions were used.
It is not too l
much to say that the new legislation controlling U.S.
nuclear l
2/
Attachment to Memorandum, Department of State to Lee V.
Gossick, Nuclear Regulatory Commission, " License Application Analysis," January 25, 1978.
3/
Memorandum, Department of State to James R.
- Shea, Nuclear Regulatory Commission, March 30, 1978.
Executive
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Branch memoranda of January 25, February 21, March 6, and April 7, 1978 also emphasized the urgent nature of the application.
W
- exports to all nations is a direct result of that explosion.
Consequently more than ordinary significance attaches to the Commicsion's consideration of this particular export so soon after the President signed the bill into law.
The new law's preamble states that " proliferation of nuclear explosive devices or of the direct capability to manufacture or otherwise acquire such devices poses a grave threat to the security interests of the United States and to continued international progress toward world peace and development." 4/
How we dispose of this application for shipment of nuclear fuels will importantly affect the future administration of this law and the way it is perceived in all nations engaged in nuclear commerce with us.
4/
Public Law 95-242, Section 2.
This Section continues, "Recent events emphasize the urgency of this threat and the imperative need to increase the effectiveness of international safeguards and controls on peaceful nuclear activities to prevent proliferation."
Section 3 further states the law's purpose as " Establishing a more effective framework for international cooperation to ensure that the export by any nation of nuclear materials and equipment and nuclear technology intended for use in peaceful nuclear activities do not contribute to proliferation" (Section 3c); and " Ensuring effective controls by the United States over its exports of nuclear materials and equipment and of nuclear technology" (Section 3d).
Sections 2 and 3 also contain commitments that the United States will be a reliable supplier "to nations which adhere to effective non-proliferation policies."
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Applicable Provisions of the Law The Atomic Energy Act, as amended, requires that any J
l export of enriched uranium be pursuant to an agreement for cooperation. 5/
The Act also prohibits issuance of a license if the Commission finds that the issuance would be inimical 1
to the common defense and security. 6,/
The new Act retains these requirements.
In addition, Section 126 of the Atomic Energy Act as amended by the Nuclear Non-Proliferation Act of 1978 requires the Commission, having obtained a favorable Executive Branch judgment, to make a finding, based on a
" reasonable judgment" of the assurances provided as well as on any other information available to the federal government, that the criteria set forth in Section 127, "or their equivalent" 7/ are met. 8/
_5/
Atomic Energy Act, Sec. 57 (c) (1).
-6/
Atomic Energy Act, Sec. 57 (c) (2).
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The Report accompanying the bill notes that this phrase "is intended to avoid technical disqualification of an i
export application simply because the phrasing of an assurance is not identical to that of a statutory criterion.
This phrase should not be interpreted to allow broad variation between the practical effect of an assurance and the statutory requirement."
S.
Rpt.95-467, 95th Cong., 1st Sess., Oct.
3, 1977, p.
13.
8,/
Section 127 criteria are:
(1) IAEA safeguards as required by Article III(2) of the [Non-Proliferation] 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, and to any special nuclear material used in or produced through the use thereof.
(continued) l l
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Of the six criteria of Section 127, we consider three to present particular difficulties for this license application:
the first, that International Atomic Energy Agency safeguards will be applied to past and current exports, reactors as well as nuclear fuel, and to any plutonium derived from these exports; the second, that previously and currently exported reactors and fuel and the plutonium derived from them will not be used for any nuclear explosive device, or for research on or development of any nuclear explosive device; and the fifth, that the exported fuel will not be reprocessed after irradiation in the reactor without prior U.S.
approval.
In considering these criteria we believe the Commission must make a judgment as to whether current safe-guards and assurances will apply in the future.
8/
(continued)
(2) No such material, facilities, or sensitive nuclear technology proposed to be exported or previously exported and subject to the applicable agreement for cooperation, and no special nuclear material produced through the use of such materials, facilities, or sensitive nuclear technology, will be used for any nuclear explosive device or for research on or development of any nuclear explosive device.
(3) Adequate physical security measures will be maintained with respect to such material or facilities proposed to oe exported and to any special nuclear material used in or produced through the use thereof.
Following the effective date of any regulations promul-gated by the Commission pursuant to section 304 (d) of the Nuclear Non-Proliferation Act of 1978, physical security measures shall be deemed adequate if such measures provide a level of protection equivalent to that required by the applicable regulations. (continued)
f'
. The Additional Export Criterion:
Comprehensive Safeguards In addition to the Section 127 criteria, the Nuclear Non-Proliferation Act forbids, in Section 128, export approvals 1
to non-nuclear weapon states which have not placed all nuclear activities under international safeguards within 18 1
months of the law's enactment.
Thus, the effect of Sections 127 and 128 is to bring the restrictions of the law into i
full force in two phases, the first imposing the criteria of Section 127 immediately, the second imposing the additional criterion at the end of the 18-month period.
This latter 8/
(continued)
(4) No such materials, facilities, or sensitive nuclear technology proposed to be exported, and no special nuclear material produced through the use of such material, will be retransferred to the jurisdiction I
of any other nation or group of nations unless the prior approval of the United States is obtained for such retransfer.
In addition to other requirements of law, the United States may approve such retransfer only if the nation or group of nations designated to receive such retransfer agrees that it shall be subject to the conditions required by this section.
(5) No such material proposed to be exported and no special nuclear material produced through the use of such material will be reprocessed, and no irradiated fuel elements containing such material removed from a reactor shall be altered in form or content, unless the prior approval of the United States is obtained for such reprocessing or alteration.
(6) No such sensitive nuclear technology shall be exported unless the foregoing conditions shall be applied to any nuclear material or equipment which is produced or constructed under the jurisdiction of the recipient nation or group of nations by or through the use of any such exported sensitive nuclear technology.
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'l grace period is designed to allow the President time to seek
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.g; adherence to the Nuclear Non-Proliferation Treaty, or, failing that, to the Treaty's central controlling device of comprehensive safeguards over all nuclear activities within t
the importing country.
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i In past years India has refused to accept comprehensive safeguards in the absence of sweeping and universal arms
,_g control and disarmament agreements.
The Department of State reports that the Prime Minister has taken the " consistent position that India would accept such safeguards when at least the'U.S., the U.K.,
and the USSR agreed to a complete nuclear test ban, agreed not to add further to their nuclear arsenals,'and came to an agreement to have a gradual reduction of nuclear stockpiles, with a view to the eventual destruction of such stockpiles." 9/
In short, however affirmatively expressed, the Indian conditions are formidable, and in any caso are not entirely within U.S. control.
Thus they present a very real prospect that the continued U.S.
export of nuclear fuel to India beyond the prescribed period will be forbidden under the new law.
~9/
Memorandum, Department of State to James R.
- Shea, Nuclear Regulatory Commission, "XSNM-1060 License l
Application Analysis," March 30, 1978.
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-g-i As discussed below, this prospect does not compel the l
NRC to apply the comprehensive safeguards criterion of Section 128 immediately but it does compel the Commission to consider the impact of the prospective criterion on the Commission's ability to find that the Section 127 criteria will continue to be met.
Congress clearly intended the l
protection of exports covered by these criteria to extend beyond the 18-month period.
What may happen then, for reasons peculiar to the Tarapur Agreement for Cooperation, is critically important to our assessment of this license.
Interpreting the Agreement:
Assurances and the Fuel Supply In considering this application under the new statutory criteria we are obliged to take into account both the unusual nature of the Agreement for Cooperation and also the per-sistent differences in interpretation of key provisions in the Agreement with India which have characterized its history.
The 1963 Agreement under which nuclear exports to India have taken place in the past is unique among U.S.
bilateral agreements in that it provides for the exclusive use of U.S.
fuel in the Tarapur reactors and, in exchange, for a U.S.
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i guarantee of its supply. 10/
This provision played a central role in securing initial Indian acceptance of safe-guards at Tarapur.
From the outset there have been disagreements between I
the two governments as to the interpretation of the commit-ments under the Agreement.
In fact, in the safeguards article of the original agreement 11/ India wrote its dif-ferences into the terms of the Agreement itself.
In Article VI,
~~10/
Agreement Between the United States of America and India, signed at Washington, D.
C.,
August 8, 1963.
Article II A:
"During the period of this Agreement the United States Commission will sell to the Government of India and the Government of India will purchase from the United States Commission, as needed, all require-ments of the Government of India for enriched uranium for use as fuel at the Tarapur Atomic Power Station, it being understood that the Tarapur Atomic Power Station j
shall be operated on no other special nuclear material than that made available by the United States Commission and special nuclear material produced therefrom."
11/
Article VI A, U.S.-India Agreement for Cooperation:
"The Parties to this Agreement emphasize their common interest in assuring that any material, equipment or device made available to the Government'of Incia for use in the Tarapur Atomic Power Station, or in connection therewith, pursuant to this Agreement shall be used solely for peaceful purposes.
The Government of India emphasizes, in contrast to the position of the United States, that its agreement to the provisions of this Article in relation to equipment or devices transferred pursuant to this Agreement has been accorded in con-sideration of the fact that, as provided in this Agreement, the Tarapur Atomic Power Station will be operated on no other special nuclear material than that furnished by the Government of the United States of America and special nuclear material produced therefrom, in con-sequence of which the provisions of this Article in relation to equipment or devices in any case ensue from the safeguards on fuel."
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India notes that the only basis for its acceptance of safeguards over equipment and devices and for its assurances of their use solely for peaceful purposes was the special nuclear fuel arrangement involving the exclusive use and the continuing supply of U.S.
fuel.
This is contrasted with the U.S.
position that the safeguards agreement applies to the facility as well as to the fuel.
This suggests, in effect, that from the beginning India tolerated safeguards on the Tarapur reactors themselves only so long as they were operating on U.S.-supplied fuel.
Our concern about this condition for accepting safeguards is heightened by the Indian government's response to U.S.
requests for clarification and reassurance following the Indian explosion of May 1974.
In a letter dated July 10, 1974, India not only reasserted its position with regard to the basis for accepting safeguards on the Tarapur reactors but appeared to tie its acceptance of safeguards on the fuel itself to the continuation of Tarapur's fuel supply. 12/
It has therefore never been clear how India regards its obligations to the United States, either as to the previously exported reactors or as to the fresh and irradiated fuel, except as subject to the condition of continued supply of U.S.
fuel.
12/
H.
N. Sethna, Chairman, Government of India Atomic Energy Commission, to Dixie Lee Ray, Chairman, United
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States Atomic Energy Commission, July 10, 1974.
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- A similar conflict in the respective positions of our j
two governments over relevant provisions of the Agreement is reflected elsewhere in the July 10, 1974 letter.
The Indian government said it was " unable to share the understanding of the United States Government (1) that the use in or for f
any nuclear explosive device of any material or equipment subject to U.S. Agreements for Cooperation in Civil Uses of Atomic Energy is precluded; and (2) that under the safeguards agreement related to such Agreements for Cooperation, the IAEA is responsible for verifying, inter alia, that the safeguarded material is not used in or for any nuclear explosive device." 13/
Immediately thereafter the United States sought and received written assurances that the U.S.-supplied fuel would "hereafter" be used solely "for the needs of the
[Tarapur Atomic Power] Station." 14/
13,/
Ibid.,
H.
N.
Sethna, July 10, 1974.
14/
- Letter, H.N.
Sethna to Chairman Ray, U.S. Atomic Energy Commission, September 17, 1974:
"The Government of India would like to reassure the Government of the United States of America 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...."
The records of the correspondence make it clear that India declined to include explicit language covering nuclear explosives requested by the U.S.
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t Application of the Criteria to XSNM-1060 Three elements have now converged in this application:
the prospective U.S. requirement of comprehensive safeguards; India's historic attitude toward such safeguards; and the basis of India's position for its acceptance of safeguards and of other commitments (both under the agreement and more generally) covering the Tarapur reactors and their fuel.
Taken together, they raise serious questions about whether the material covered by this application (as well as previous exports) will continue to be protected in accordance with the Section 127 criteria of the new Act.
In expressing our concern about the ultimate fate of the fuel proposed to be shipped under this license, we are not concluding that the additional export criterion to go 1
into effect a year and a half from now must be satisfied today.
We are saying, rather, that the Commission cannot responsibly ignore the undeniable uncertainties surrounding the U.S.-Indian nuclear supply arrangements and the unique manner in which Indian commitments may be tied to future fuel shipments. 15/
15/
In license applications under Agreements for Cooperation with other non-signatories of the Non-Proliferation Treaty there is an authorization, but nothing that can i
be interpreted as an obligation, to supply nuclear fuel.
In all other cases, therefore, the prospective comprehensive safeguards requirement imposed as a condition of supply after 18 months does not threaten the durability of the basic acreement.
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In reviewing the present application, the Commission must make a judgment about the relative importance of the uncertainties inherent in an Indian fuel shipment today:
After 18 months, will IAEA safeguards continue to apply?
Will the produced plutonium be precluded from use in explosives?
Will the United States continue to exercise the reprocessing control we have deemed essential to effective safeguarding of U.S.-supplied material?
In view of the Indian position in Article VI of the Agreement and the circumstances already set forth, it is difficult to see how the commission can make a finding, as required by the first criterion of Section 127, that IAEA safeguards will be applied to the previously exported Tarapur reactors or to plutonium produced in them.
Nor can it ignore the uncertainties concerning the application of safeguards to the material proposed to be exported or that previously exported. 16/
Similar uncertainties extend to the second criterion of Section 127:
that no material or reactor to be exported or previously exported and no plutonium produced through the 16/
A further difficulty lies in India's rejection of the U.S.. position that under the Agreement for Cooperation
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and other related safeguards agreements, the IAEA is responsibile for verifying that safeguarded material is not used in any nuclear explosive device.
See Sethna letter, July 10, 1974.
India's position conflicts with the criterion 1 requirement that safeguards as required by the Non-proliferation Treaty be applied, for NPT i
l safeguards are explicitly designed to preclude any nuclear explosions.
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use of such materials or facilities will be used for any l
nuclear explosive device.
As noted, India has disagreed with the U.S. on the extent to which " peaceful" nuclear explosions are precluded by the Agreement for Cooperation, but it has assured the U.S.
that U.S.-supplied fuel would "hereafter" be used solely "for the needs of the (Tarapur l-Atomic Power] Station." But we do not know whether this I
written assurance is linked to the Agreement for Cooperation and to the eventual fate of that Agreement or whether India regards "hereafter" to mean that the assurances are to i
continue in perpetuity. 17/
i Finally, the fifth criterion requires that no special nuclear material produced through the use of U.S.-supplied L
fuel "will be reprocessed" without prior approval of the
-United States.
How the U.S.
rights of approval to reprocess the.large stockpile of plutonium-bearing spent fuel at the
-Tarapur station will be interpreted by the government of India in the event the Agreement comes to-an end is not clear.
For here we have been provided with no assurances
(
whatsoever. 18/-
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Even'if the assurances are in perpetuity, they do not cover the use of the reactors, should the Agreement come to an end, to manufacture nuclear explosive. materials with fuel from another source.
Such assurance is required by the new law.
18/
The Prime. Minister's March'23, 1978 response to questions
'in Parliament on this point are not reassuring.
"If
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they say:
'no' (to the fuel shipment]," he said, "once I hear that then all ways areJopen to us, even the processing-of the used (fuel] will be open to us.
Then we:are not bound."
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.. I Our attention has been drawn by the Department of State to the changes in the Indian government since the 1974 explosion, and to public statements and private comments by the Prime Minister concerning nuclear explosive devices and 1
other matters related to this export.
We do not question the sincerity of these assurances.
Nevertheless, we do not believe they are sufficient to support a Nuclear Regulatory Commission finding that the new law's criteria governing U.S.
nuclear exports are satisfied.
What is missing from the record if NRC is to be able to make the finding that the immediately applicable criteria are met is formal assurances that regardless of the eventual fate of the agreement itself, both current and previous
~onditions and restraints placed on U.S.-supplied fuel, and i
on the Tarapur reactors themselves, will be maintained; otherwise the Congressional intent that no U.S. material or facilities contribute to explosive uses of nuclear energy may be frustrated, if not in this case then in one of the many which will follow it.
The consistent and objective administration of the new law by the NRC is directly at l
l issue here.
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l This is true even though, as we have said, the circum-stances of this particular license application are unique.
It is unique because of the Agreement governing it; but it i
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^ is also unique because of the "special nature of the assurances" involved in this case.
Were it not for these, and the degree of urgency attached to this application, it might have been possible for the Commission to initiate a process designed to obtain the required assurances through further consultation and negotiation with the Government of India.
But the exigencies of time do not appear to allow for this approach. 19/
Presidential Action In enacting the Nuclear Non-Proliferation Act of 1978, the Congress clearly contemplated that in certain situations strict adherence to the terms of the Act would not serve its larger purpose. 20/
For this reason, the President is authorized, upon a finding by the Commission that it cannot make the statutory findings required of it, to authorize the shipment himself, subject to Congressional review, upon a finding that " withholding the proposed export would be seriously prejudicial to the achievement of United States non-proliferation objectives, or would otherwise jeopardize the common defense and security...." 21/
19/
See Department of State memoranda, January 25, February 21, March 6, March 30 and April 7, 1978.
20/
S.
Report 95-467, p.
14:
providing for Presidential review in the event NRC "is unable to make the various determinations required by law."
21/
Sec. 12 6 (b) ( 2).
. p.!
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man This is not an appellate procedure in which the President need overrule the Nuclear Regulatory Commission's interpre-
&&J tation of the statute and of its own obligations thereunder.
As we have indicated, the President's obligations are broader and his freedom to act more flexible.
It is important to make clear that we are not addressing the question whether it would be unwise or inconsistent with overall non-proliferation I
goals for the President to authorize this export.
Unlike an
....,,.4 NRC action, a Presidential decision to issue a particular license on the basis of his assessment of a given case would not affect the consistent application by the NRC of the standards Congress has chosen to apply to export decisions.
Thus, our inability to certify that the statutory criteria ar'e met is not to be read as a statement that the President should not authorize this shipment.
That judgment is his to make, based on. considerations that are legitimately apart from those imposed on us by the statutes that we administer.
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