ML20205G701
| ML20205G701 | |
| Person / Time | |
|---|---|
| Issue date: | 04/24/1978 |
| From: | Kennedy R, The Chairman NRC COMMISSION (OCM) |
| To: | |
| References | |
| NUDOCS 9904070352 | |
| Download: ML20205G701 (18) | |
Text
__
. April 24,1978 COMMISSIONER KENNEDY'S VIEWS ON ISSUANCE OF XSNM-1050 In my view, license application XSNM-1060 covering the export of fuel to India's Tarapur Atomic Power Station meets all the applicable criteria set forth by Congress in the newly enacted Nuclear Non-Proliferation Act. Therefore, the license should have been issued. Instead, by a divided vote, the Commission is referring this license application to the President because two members af the Commission found themselves unable to make the statutory determinations required by the Nuclear Non-Proliferation Act of 1978. Thus, the Commission could not achieve the majority vote necessary to authorize issuance of the license.
'ihe divided vote arose, in my view,'from differing perceptions as to the application of the six statutory criteria set forth in section 305 of the Act , as they are affected by the requirement in section 305 that 1/ Public Law 95-242, March 10, 1978.
- 2/
Section 305.of the Nuclear Non-Proliferation Act establishes a new section 127 of the Atomic Energy- Act which provides:
"Sec.127. Criteria Governing United States Nuclear Exports. -
"The United States adopts the following criteria which, in addition to other requirements of law, will govern exports for peaceful nuclear D h N uses from.the United States of.cource material, special nuclear material, w
P . w g(g-j production technology: of utilization facilities, and any sensitive nuclear i H "(1) IAEA safeguards as required by Article III(2) of the n< M Treaty will be applied with respect to any such material or Sf j facilities prop.osed to be exported, to any such material or e o g > facilities exported and subject to the applicable agreement v
g' s
'c, for cooperation, and to any special nuclear material used in or produced through the use thereof.
s s
9904070352 780424 PDR CO NS IWtCC CORRESPONDENCE PDR _.
F.
~
... IAEA safegtardsJ are maintained with respect to all peaceful nuclear activities . .." This requirement, which becomes effective 18 months af ter enactment of the Nuclear Non-Proliferation Act, i
2f (continued)
"(2) No such material, facilities, or sensitive nuclear tech-nology 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 be exported and to any special nuclear material used in or produced through the use thereof. Following the effective date of any re promulgated by the Commission pursuant to section of 304(d)gulati 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.
"(4) No such materials, facilities, or sensitive nuclear tech-nology proposed to be exported, and no special nuclear material produced through the use of such material, will be retransferred to the jurisdiction 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 Uni,ted 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 fecm 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 shatl 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 o' any qch exported sensitive nucledr
! technology.".
l -.
has become known as the " full scope safeguards criterion."
Background
)
)
The material covered by XSNM-1060 would have been the 27th in a
' ~
j series of fuel shipments to supply the Government of India with low-I enriched uranium to fuel two reactors at India's Tarapur Atomic Power Station, reactors which were supplied by the United States.
~
Under the Agreement for Cooperation between the United States and India, the Government of India has agreed to fuel the Tarapur reactor 4/
only with nuclear material supplied by the United States.--
~3/ Section 306 of the Nuclear Non-Proliferation Act establishes a new section 128 of the Atomic Energy Act which provides in v
part:
"Sec. 128. Additional Export Criterion and Procedures. -
"a. (1) As a condition of continued United States export of source material, special nuclear material, production or utilization facilities, and any sensitive nuclear technology to non-nuclear-weapon states, no such export shall be made unless IAEA safeguards are maintained with respect to all peaceful nuclear activities in, under the jurisdiction of, or carried out under the control of such state at the time of the export."
4f 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 requirements of the Government of India for enriched uranium for use as fuel at the Tarapur Atomic Power Station, it being understced that the Tarapur Atomic Power Station shall be operated on no other special nuclear material than that made available by the United States Commission and special nuclear material produced therefrom..."
l
^
l -4 l ..
XSNM-1060 is also one of a series of licenses in which the Natural Resources Defense Council, the Sierra Club, and the Union of Concerned Scientists filed motions requesting public hearings on the proposed shipments. Two earlier licenses, XSNM-805 and l
XSt1M-845, were reviewed by the Commission and issued only after the petitioners were assured that their concerns would be addressed as subsequent licenses were considered. XSNM-805 was issued by the Commission on July 1,.1976 af ter an agreement was reached-with the petitioners -
l in the intervention that a hearing would be held in connection with the Commission's consideration of the subsequent license, XSNM-845.
The Commission then held two full days of public hearings in July 1976, the transcript of which is available in the NRC's Public Document Room.
4 On June 28, 1977, the Commission issued XSNM-845 accompanied by a detailed opinion addressing the merits of the proposed license.6/
Review of XSNM-1060 Under export licensing procedures adopted in 1975 by the Commission and recently codified in the Nuclear Non-Preliferation Act, the ]
1 1
~
5/ In connection with the issuance of XSNM-805, the Commission rele'ased an opinion detailing the procedural history of the case. In the Matter of Edlow International Company 3 NRC 563 (1976).
6/ In the Matter of Edlow International Company, 5 NRC 1258 (1977).
1 I
views of the Executive Branch on XSNM-1060 were sought and received.U The Commission, in its detailed review of this license, went further.
It examined several aspects of the United States-India nuclear relation-ship in order to assure itself of the adequacy of the assurances and safeguards applicable to the proposed export, l Additional submissions were requested from the Executive Branch to address the impact of the new Nuclear Non-Proliferation Act on the proposed shipment 9/ ,
the criteria contained in the Acte /, and the issue of perpetuity 7] Memorandum for Lee V. Gossick, Nuclear Regulatory Commission from Peter Tarnoff, Executive Secretary, Department of State, January 25, 1978.
8f For example, the Commission had before it the following memoranda
, from its staff:
Memorandum from Carlton R. Stoiber, Assistant General Counsel to Commissioner Gilinsky,
Subject:
Nuclear Non-Proliferation Act Provisions on Explosive Devices, March 30, 1978.
Memorandum from Ken Pedersen to Commissioner Gilinsky,
Subject:
U.S.-India Agreement for Cooperation, March 31, 1978.
Memorandum from Ken Pedersen to Commissioners Gilinsky and Bradford,
Subject:
U.S.-India Agreement for Cooperation, April 3,1978.
Memorandum from Ken Pedersen to Commissioner Gilinsky,
Subject:
Fuel Requirements for Tarapur Reactors, April 3,1978.
~~9/
Memorandum for James R. Shea, Nuclear Regulatory Commission from l
Louis V. Nosenzo, Deputy Assistant Secretary, Department of State, March 29,1978.
10/ Memorandum for James R. Shea, Nuclear Regulatory Commission from Louis V. Nosenzo, Deputy Assistant Secretary, Department of State, March 30, 1978.
l l
-6 ,
11/
~~~
of safeguards over U.S. supplied material in India. The Commission also received a regular and continuing flow of information on political developments in India regarding nuclear supply including news reports, descriptions of Indian parliamentary debates, and accounts of ongoing United States-India discussions on nonproliferation matters.
All of the facts and circumstance surrounding this export were examined at length by the Executivo Branch and by the appropriate Commission staff offices. All reached the same conclusions. The Executive Branch found that the criteria were met and recommended i
12/
that the license be issued. The Commission's own staff reached 13/
The NRCs Of fice' of the Executive Legal
~
the same conclusion.
6 l
l Director, when asked by Commissioner Bradford to review the license application in light of the six criteria, also reached the judgment that the criteria or their equivalent were met. ~~-14/
)
! 11] Memorandum for James R. Shea, Nuclear Regulatory Commission from Louis V. Nosenzo, Deputy Assistant Secretary, Department of State, l April 7,1978 (Classified-Confidential). !
i 12] See Note 7, supra. l
-13/ Memorandum from James R. Shea, Director, Office of International
-- - l Programs, to the Commission, February 22, 1978, SECY-78-105.
Memorandum from Ken Pedersen to the Commission,
Subject:
LEU Export to India (XSNM-1060) and Related MRDC Petition, March 13, 1978.
14/ Memorandum from Lee V. Gossick, Executive Director for Operations, to the Commission, April 6, 1978.
Subject:
Export of Tarapur
-~
Fuel - Fulfillment of friteria of Nuclear Non-Proliferation Act.
r
~
-7 Not only were the requirements of the Nuclear Non-Proliferation Act met but this license application became a key factor in broader foreign policy initiatives of the United States. The Executive Branch stressed that not only was the license urgently needed for India's nuclear power program, but that it was needed to facilitate the continuation of ongoing U.S. nonproliferation initiatives with the Government of India.15/ Indian supply concerns, in fact, were
~ --
well known by the Commission. It was no secret that the Government of India was becoming more than a little concerned about the continuation of its nuclear fuel supply relationship with the United States and about the reliability of the United States as the exclusive supplier of nuclear fuel under the Agreement for Cooperation.
e' More directly pertinent to the Commission's responsibilities, however is the need to assure proper safeguards for exports, and to achieve United States nonproliferatio, objectives. The Commission's action on XSNM-1060 may well have made more difficult the. achievement of the full-scope safeguards regime which all agree must be the objective.
15/ llemorandum f:r Lee V. Gossick, fluclear Regulatory Commission, from Peter Tarnof f, Executive Secretary, Department of State, March 6, 1978.
. See also Memorandum for James Shea from Louis V. Mosenzo, Note 10, supra.
~
1
The Proper Apolication of the Nuclear Non-Proliferation Act As I have indicated, the analyses and recor.mendations provided to the Commission by the Executive Branch and the Commission's own staff have ,
l
' been unanimous in stating that the six criteria are presently met by this export license application. I agree fully with that conclusion.
But what then is the issue which divides the Commission?
l The principal issue regarding the issuance of XSNM-1050 arises from the ,
I effect of the additional export criterion, i.e., full scope safeguards, which is to be applied to license applications filed 18 months after 1 enactment of the statute.15/ My colleagues state that " Congress clearly intended the protection of exports covered by the criteria to extend
+ beyonG the 18 month period."Ill They argue that the Commission cannot properly find that three of the statutory criteria (IAEA safeguards, peaceful use assurances, and reprocessing controls) will prospectively
.be met.
They point to the fact that application of th'e full scope safeguards requirement in .18 months may compel the United States to terminate 16/ See Note 3, supra.
' j
~~17/ Memorandum Defining the Views of Commissioners Bradford and
~
l l Gilinsky, April 20,1978, page 8.
l l
its fuel supply relationship with the Government of India, thereby l
calling into question the entire regime of safeguards and assurances contained in the United States-India Agreement for Cooperation. This doubt as to what will occur at the end of the 18 month period leads them to find that adequate assurances are " missing from the record."
They state that what is needed are " formal assurances that regardless of the eventual fate of the agreement itself, both current and previous conditions and restraints placed on U.S.-supplied fuel, and on the 18 Tarapur reactors themselves, will be maintained;"~.- / In other words, they argue that the Commission can consider the criteria met only if 19 it can find that " assurances are to continue in perpetuity."--/
6
- I believe this line of reasoning is fundamentally unsound. First, with respect to the difficult issue of maintaining safeguards in perpetuity,'the Congress established in section 404 of the fluclear Non-Proliferation Act a precise statutory mechanism for achieving this desirable policy objective by calling for a process of renegotiating Ibid, page 15.
_18/
_19/ lbid, page 14.
l
~'
.10 - -
all existing United States Agreements for Cooperation with foreign nations. If the Congress had intended that a guarantee of perpetual safeguards should be an immediately applicable requirement for United States nuclear exports, it hardly would have made it a
' ~
negotiating objective to be sought in the form of amendments to existing agreements for cooperation. Instead, Congress was explicit in stating that, though changes were to be sought in present
- agreements through negotiations to this end, this fact "shall not l l
affect the authority to continue cooperation pursuant to agreements l entered into prior to the date of enactment of this Act."
There is no room for doubt, therefore, that the Commission is required f i only to find that safeguards as provided by present agreements will be applicable. As earlier noted, Congress clearly laid out a specific 0
10/ Section 404 of the Act mandates that "The President shall initiate a program immediately to renegotiate agreements for cooperation in effect on the date of enactment of this Act ..." .Section 401 sets out the terms which, at a mininium, the President is directed to obtain through renegotiation of existing agreements. It is notable that the first item mentioned is the need to ensure that safeguards are unrelated to the duration of the applicable
- agreement of cooperation, but will be maintained in perpetuity.
2_1/
P.L.95-242, section 405(a).
(..
and different method for obtaining assurances of safeguards to apply beyond the term of existing agreements for cooperation. Thus it is clear that the Act does not conteniplate the termination of nuclear cooperation by the NRC in a case such as this in which the renegotiation process has not been completed in the first 40 days following its
- enactment.
~
Moreover, I believe that the legislative history of the Nuclear Non-Proliferation Act amply demonstrates that Congress clearly intended that~ commerce with our current nuclear trading partners should continue during .the 18 month period which was provided for negotiating full .
scope safeguards arrangements. There were frequent expressions of .
concern during Congressional deliberation of the proposed legislation as to the possible impacts of the six immediately applicable criteria on the ability of the United States to maintain nuclear commerce with nations already. covered by existing cooperative agreements On each occasion the Congress was assured that application of the criter'a i would not create a moratorium on United States nuclear exports. The Senate Report c, the Act reflected this Congressional understanding, as follows: "As currently drafted, these ' Phase l' export criteria will not result in an immediate maratorium on U.S. nuclear exports.
Although the actual language in our existing agreements for cooperation varies, and seldom corresponds precisely to the language of these
o criteria, it is our understanding that each of these basic requirements !'
22 /
and rights are contained in those agreements noted below."
I 1
Moreover, in introducing the non-proliferation legislation, Senator
~
John Glenn, the floor manager of the bill stated: "The criteria which go into effect immediately upon passage of this bill represent nothing more than a common-sense codification of existing policy regarding 23/
nuclear exports to non-weapon states."-
This view is consistent with the position which President Carter expressed when the Administration's nonproliferation bill was 24/ with testimony repeatedly offered transmitted to the Congress, J by Executive Branch of ficials during Congressional deliberations on 26 /
the Act,25/ and with testimony by members of the Commission itself.
2_2/ Senate Report No.95-467,. 0ctober 3,1977, page 16.
\
2_3,/ 124 Congressional Record, February 2,1978, S.1065.
24
^/ White House transmittal letter to Congress on S.1432, the
'Huclear Nori-P'roliferation Po'licy Act of 1977 (April 27,1977).
2_5/ Statement of JosepS S. Nye, Deputy to the Under Secretary of State for Securit) Assistance,-before the Energy, Nuclear Proliferation and Government Services Subcommittee of the SencteGovernmentAfhirsCommittee(May6,1977).
2_6/ Statement of Chairman 14 arcus Rowden to the Senate Foreign Relations Cenit. tee (Say 23,1977).
d J
i
.- . j Yet the arguments expressed in my colleagues' memorandum center on the fact that the United States-India Agreement for Cooperation does not provide now for the more stringent safeguards assurances which Congress requires be put in place for the future. They note, for example, not only India's hesitation to adopt full scope safeguards, but also India's cautious insistence that safeguards themselves are a quid pro quo for an assured fuel supply for.the Tarapur reactors.
' Further, the argument hinges directly on the reasonable concern that safeguards should be applied beyond the term of any agreement for cooperation. Indeed, these are points of concern which must be ,
l reconciled in future negotiations .with India. The Congress itself required that all such problems be resolved through the renegotiation process which it directed the President to undertake. But at the same j time, Congress clearly intended that nuclear supply continue under i
present agreements while negotiations proceed.
But the argument is made that we cannot continue cooperation at this. l time under these circumstances. And the argument is couched in language which suggests that the present criteria are not met and 4
therefore cooperation must cease, or at least that the Commission itself cannot approve shipments. But Congrets intended no such result.
As earlier described, the Nuclear Non-Proliferation Act and its
~
legislative history make clear that Congress intended to achieve i
. 1 l l l
)
' ~
I perpetual safeguards through renegotiation of present agreements, not through interpretation of the six immediately applicable criteria.
I Congress further intended that those six criteria would .not lead to i
'a moratorium against any of our nuclear trading partners. .
It is argue'd further that the United States-India Agreement for cooperation is unique because, as my colleagues memorandum states, "the only basis for its (India's) acceptance of safeguards over d
. equipment and devices and for. its assurances of their .use solely for peaceful purposes was the special nuclear fuel arrangement involving l 27/
~
. ~
the exclusive use and the continuing supply of U.S. fuel." My colleagues memorandum further states that " serious questions" are
.I raised "about whether the material covered by this application (as well as previous exports) will continued to be protected in accordance 28/
i with the section 127 criteria of the new Act." ~
It is true that the United States-India Agreement for Cooperation differs from others in the respect noted. However, a number of factors are relevant in this regard.
-27/ Memorandum Defining the Views' of Commissioners Bradford and Gilinsky, April 20,1978, page 10.
2_8/ Ibid, page 12.
9 l
First, the United States-India Agreement for Cooperation explicitly provides for the return of all U.S. supplied special nuclear material in the event of termination of the Agreement by either party. ~29/ }
l Second, India has repeatedly informed the United States of its f willingness, indeed, its desire, to return to the United States t' e spent fuel which was generated in the Tarapur Atomic Power Station.
Third, it must be emphasized that the nuclea" material , covered by ,
XSNM-1060 represents only the latest in a long series of shipments to India. No Tarapur fuel has ever been diverted to unauthorized uses by the Government of India. There is no evidence available to me that such a diversion is likely in the future; and the Commission is neither required nor empowered to act on mere presumption as to the course of future o events. Instead, as the Nuclear Non-Proliferation Act states in
\
section 304(a), our decisions are to be based on a " reasonable judgment )
of the assurances provided a:d other information available to the j Federal Government, including the Commission, that the criteria in section 127 of this Act or their equivalent, and any other applicable statutory requirements are met."
g Article VIII c. of the United States India Agre'ement for Cooperation provides in part:
"In the event of termination by either Party, the Government of India shall, at the request of the Government of the United States of America, return to the Government of the United States of' America all special nuclear materials received pursuant to this Agreement and in its possession or in the possession of persons under its juris-diction."
l
i- i
[--
l l ..
Finally, our foremost objr.ctive should be to obtain the non-proliferation goals which are set out in the Nuclear Non-proliferation Act, including full scope safeguards. Consequently, our actions should be aimed at continuing the present high level discussions with the Government of India on this subject and at avoiding actions which would lead to j discontinuation of the cooperation which helps facilitate those discussions and may well contribute much to the likelihood of their l
success.
l Achieving Full-Scope Safeguards j Full scope safeguards is an objective which, as all have acknowledged, l '
will require careful negotiation to achieve. It is well understood that
- India sees full scope safeguards as controversial and is appare.ntly not yet convinced that their adoption would be in its own interests. It considers a number of other conditions as desirable accompaniments to :
such a regime. But the fact that negotiations may be complex and difficult does not argue against engaging in them. Nor does it justify a presumption that there is no real chance that they will succeed. There simply is no t basis for the Commission to conclude that the ultimate outcome of such negotiations, which .are to be. conducted.by the appropriate Executive.
Branch agencies on behalf of the United States will be failure. The President himself has raised the issue with the Prime Minister of India, and those responsible for such negotiations within the Executive Branch have maintained a continuirrg dialogue with India on this subject. There
. M
r l
e.
is every evidence that India's attitude has not been intransigent but indeed has evidenced a willingness to pursue these isstfes with us seriously. I have no reason to believe that efforts will not continue in diplomatic channels and at the highest governmental levels on both sides. For after all, the supply relationship with India is a continuing one under the very terms of, our Agreement for Cooperation. If India is to observe the terms of our agreement, as it has in the past, it must rely on the United States for fuel for the Tarapur reactor. And indeed there is still another l'icense pending with the Commission, XSNM-1222, now under consideration in the Executive Branch.
XSNM-1060 and Future Licenses I Finally, I believe it should be noted that the Ccmmission's action on XSNM-1060 may impact subsequent license applications made pursuant to the U.S.-India Agreement for Cooperation. There was, I thought,-no doubt whatsoever that Congress had delayed the effective date of the full scope safeguards criterion for 18 months in order to permit the necessary period of time for sensitive negotiations. The Congress also directed that cooperation would continue under present arrangements.
It did so because it was continually led to believe that the six immediately applicable criteria would not lead to a moratorium on exports and it so stated its belief with regard to the Act.
But the Commission has now refused a fuel shipment - the 27th under l
i present arrangements. To do so, the criteria adopted by the Congress
r
- were interpreted in such a way as to achieve a result different from that intended by the statute. In short, the full scope safeguards criterion is now being interpreted in a way which may give the I appearance of a potential moratorium on fuel shipments to India.
If nuclear supply cooperation is to continue with India then the issues which now divide the Commission must be resolved. As I have indicated, adoption of full scope safeguards is a matter for the 18 month negotiation period-specifically provided by Congress; and provision of perpetual safeguards assurances is unambiguously a matter for the section 404 30 /
renegotiation process. In my view, for the Commission to demand either at this time by holding licenses hostage to these requirements
$ is to thwart the will of Congress and to make more difficult the very negoti'ating process which Congress in its wisdom foresaw as the approach most likely to achieve United States non-proliferation objectives.
30/ My colleagues apparently take a dif.ferent view not only as 'to how the Congress ~ intended perpetual safeguards assurances should be sought, but as to who should seek them as well.. Section 404(a) ,
of the Mu' clear Non-Proliferation Act specifically places responsi-bility on the President to " initiate a program immediately to renegotiate agreements for cooperation in effect on the date of enactment of this Act ..."
On the other hand, it states' on page 16 of my colleagues' memorandum: "Were it not for ... the degree of urgency attached to this applicati.on it might have been possible for the l
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 f or this erproach."
l