ML25260A585

SECY-78-406: Pending Retransfer from Japan to the Uk for Reprocessing (Rtd/Eu (JA)-20)

ML25260A585
Person / Time
Issue date:	07/25/1978
From:	James Shea NRC/OIP
To:	Commissioners NRC/OCM
References
SECY-78-406
Download: ML25260A585 (1)

Text

~tlBff\\J\\t July 25, 1978, __

~~Y-78-406 For:

From:

Thru:

Purpose:

Discussion:

Contact:

COMMISSIONER ACTION The Commissioners James R. Shea, Director Office of International Programs I f Executive Director for Ope_rations PENDING RETRANSFER FROM JAPAN TO THE UK FOR REPROCESSING (RTD/EU (JA)-20)

Commission review and approval of proposed Department of Energy (DOE) retransfer action.

DOE has requested NRC views regarding the proposed retransfer of 126 spent fuel assemblies from the Fukushima No. l, Unit No. 2, nuclear power reactor in Japan to British Nuclear Fuels Ltd. (BNFL) in the UK for reproc~ssing (see attached June 30 memorandum at Appendix A).

Although the proposed retransfer is not scheduled to take place until September, DOE recently received a cable from Japan (Appendix B) which requests approval by the end of July because of the need to finalize shipping arrangements.

DOE has accordingly requested expedited NRC consideration of the pro-posal, especially since the Nuclear Non-Proliferation Act (NNPA) requires a fifteen day public notice period before any approved retransfer (or other sub-sequent arrangement) can take place.

This case is the first proposed retransfer involving reprocessing since the publication of the new inter-agency procedures for processing nuclear exports.

Pursuant to these procedures, DOE has prepared 3 de-tailed analysis of this proposed retransfer and

~laas1.f1ed by G. G. Oplinger, IP, (492-7866)

M. R. Peterson, IP, (492-8155)

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NATfONAt: SECURITY SUBJECT TO GENERAL DECLASS:FICATION SCHE9ULi:

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INFORMATION Unauthorized Disclosure Sub/ect f &

Crtn,lnaf Sanctio;is.

-G8NRUOOU\\t CVCf'* ITl\\/t"",...""'"R 11652 AUTOMAT1CALLY :>OWNGRAt AT i:wo YEAR,Ni : RYALS Al'W DECLASS',19340N oEc (insert ~edr)

Discussion:

( continued)

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2 recommended that the retransfer be approved.

The staff has reviewed the anal1ysis and, in general, concurs but would like to draw the following points to the Commissions attention:

1.

Current U.S. policy towards retransfer requests involving reprocessing is that they can be approved only upon a clear showing of a vital need for such retransfer.

In several previous cases, the lack of adequate spent fuel storage space in conjunction with announced plans for storage pool expansion has been determined to meet the approval criterion.

NRC has not ob-jected to these previous determinations.

2.

The Japanese authorities cite lack of storage space as justification for approving the sub-ject case.

The spent fuel storage pool at Unit No. 2 has a capacity of 820 fuel assem-blies.

The core size is 548 assemblies, leaving a maximum useable capacity of 272 assemblies if a full core discharge capability is to be maintained.

There are currently 151 spent fuel assemblies and 118 contaminated defective channel boxes in the storage pool and therefore 269 of the 272 available spaces are occupied.

Since 144 assemblies are scheduled to be discharged at the time of the next scheduled shutdown in December 1978, and only 126 assemblies will be removed from the storage pond under the proposed retransfer, it is clear that the Japanese reracking program must be at least partially completed (minimum of 15 additional spaces) prior to the scheduled restart of the reactor in July 1979.

Should the retransfer be disapproved, 141 additional spaces would be needed.

3.

Optimistically, the Japanese hope to complete their reracking program for Unit No. 2 by December 1978, and if successful the proposed retransfer would not be necessary.

However, as discussed in the analysis and its attachments, delays are anticipated and if the retransfer does not take place as scheduled there is a significant risk that a full core discharge capability would not be available at the time of the next scheduled restart.

On the other hand, it could be argued that since a minimum of 15 additional

Discussion:

(continued) ecommendation:

4.

3 spaces must be made available even if the retransfer is approved, it may not be asking too much to expect the Japanese to complete reracking by December of at least 141 of the total of 400 additional spaces to be made available upon final completion of the whole reracking program.

This would allow for a full core discharge capability without any retransfer taking place.

DOE has indicated that if the retransfer is approved it will be subject to the following conditions:

1. That the spent fuel will be retained by the reprocessor until it may be reprocessed and that, thereafter, the recovered special nuclear material will be retained by the reprocessor subject to the direction of the shipper.

2.

That any direction by the shipper to the reprocessor for the transfer or use of the recovered special nuclear material will be subject to the prior approval of the United States. This second condition is in addition to the right of the United States to prior approval for any transfer of these materials to a country '

outside Euratom.

On balance, the staff considers that approval of this application is warranted.

The Japanese are proceeding with expansion of their spent fuel storage capacity in good faith and in conformity with U.S.

policy, and in effect are asking us to minimize the risk that this expansion may not proceed quickly enough to ensure that Japanese legal and operational requirements will be met.

I also understand that the other Executive Branch agencies are not objecting to this proposed retransfer.

That NRC not object to the proposed retransfer and that the Commission approve the proposed response to DOE at Appendix C.

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4 Coordination:

ELD has no legal objection.

Enclosures:

l.

Memo dtd 6/ 30/78 Bengelsdorf to Shea

2.

Cable dtd 7/5/78 Miyake to Sievering

3. Proposed ltr to DOE j

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Jaefie s R. Shea, Director Office of International Programs ioners 1 comments should be provided directly to the Office of the Secretary by f business Monday, July 31, 1978.

ion Staff Office comments, if any, should be submitted to the Commissioners NLT

, 1978, with an information copy to the Office of the Secretary. If the s of such a nature that it requires additional time for analytical review and

, the Commissioners and the Secretariat should be apprised of when comments

!xpected.

JTION:

i one rs ion Sta ff Offices ir. forOpers.

~i at "tONf IUENTlAl

APPENDIX A

Department of Energy Washington, D.C. 20545 Mr. James R. Shea, Director Office of International Programs Nuclear Regulatory Commission Room 8103 Mary)and National Bank Building Washington, D.C.

20555

Dear Mr. Shea:

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3 0 i978 REQUEST FOR SUBSEQUENT ARRANGEMENT (RTD/EU(JA)-20) UNDER THE NNPA OF 1978 Pursuant to Part E of the procedures, enclosed is a retransfer request involving reprocessing, based upon need for additional pool storage space, together with an analysis.

We believe that the need does exist, that all applicable criteria are met, and that approval of the retrans-fer for reprocessing request is appropriate in that it is consistent with the requirements of the NNPA and U.S. non-proliferation policy.

We look forward to receiving your views a~ provided for Section 1.d. of Part E.

Enclosures:

1.

MB-10 Form

2.

Retransfer Request Analysis w/2 attachments

ument Transmitted ewith Contains AT\\ON TIONAL SEClJRITY INFORM Sincerely, d et, !Yf/J;iJ,,,~

~161 d D. ife~g~ 1 sd*or Director for Nuclea }ffairs International Programs

APPROV~ FOR RETRANSFE/ Ol: S;;C~UCLl::~ /l-1ATE1GAL OF UNITED STATES ORIGIN The. approval of the United States Department of Energy hereby requested to the transfer from The Tokyo Electric Po1=-1er Company, Inc.* Japan.

(Transferor) is to British Nuclear Fu?ls Ltd. for UKAEA on behalf o~ the Government

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of United States supplied special nuclear material in the quantity and meeting the specifications described below (hereinafter called "specified material") which the transferor obtained pursuant to its Agreement for Cooperation for Civil Uses with the United States Government.

Material* was originally obtained by transferor from the U. S Depart:meot of E:oergyunder Contract or Order Number 1968, Cont. No. E(49,-14)

Fuel Type EnrJ..ched Uranium Oxide GE-BWR Identification

Marking, No. 2 etc.

SPECIFIED MATERIAL (Fill. in where applicable)

Total U (In Grams}

U 24,346,000 Pu 118,000 U-235, U-233 or Pu (In Grams}

139,000 89,000 Fukushima No. 1 UES/JA/3.

Isotopic Percent U-235, U-233, or P about 1.19 75 The specif:t"ed material, which is now located at _ __..N.,.,1.....

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.... a..ypatlill upon approval hereby by the Departrnen:t of E5nergy197*8 be transferred on or about ear Ly Sep tern er, for use at British Nuclear Fuels Ltd., the Onit:ed and will be accepted for the

• --------~-------~----,K~IT'lnr-rgl'Td+.o....,rmn-f ollowing specified purpose:

Chemical reprocessing and recovery of Uranium and Plutonium contained in the irradiated fuels.

Subject to U.S. approval, the produced plutonium will be returned to Japan and the uranium will ~ither be returned as U03 to Japan or sent

• • to the U.S.

• in the form of UF 6 fo1: enrichment.. at *a. DOE faci.li.ty.

I.

The transferor, with the concurrence of the transferee,.will notify within 30 days _ afte1 the aforesaid date the Department of Energy *

• of the actual date and quantity of material transferred. It is agreed by the transferor and transferee that as of that date the sp~~cified material will cease to be subject to the Agreement for Cooperation and contract indicated above and will be subject to the transferee's A for Coo eration for Civil Uses with the United States Gov~rnment

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(Date)

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Emoassy of Japan f

su lv. Aqencv Above requested transfer under Article or_ EU%7¥1'~~nst~f?e~' s l\\gree.---nent f:or Cooperation for Civil Uses with the United States *Government approved, provided physica:

transfer is consummated by

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Retransfer Request Analysis Number RTD/EU(JA)-20 Parties Transferor - The Tokyo Electric Power Company, Inc., Japan (TEPCO)

Transferee - British Nuclear Fuels Ltd. for UKAEA (EURATOM)

Origin Obtained by transferor from USDOE under Contract No. E(49-14)UES/JA/3 Material u-235, U-233 Isotopic Percent Marketing, Total U or Pu U-235, U-233 Fuel Type Number, etc.

(in grams)

(in grams) or Pu Enriched Uraniam

)xide u 24,346, 000 139, 000 About 1.19

E-BWR Pu 118, 000 89,000 75 Present Location

?ukushima No. 1* Power Nuclear Station in the province of Fukushima, Japan.

Unit No. 2.

?reposed Location Jritish Nuclear Fuels Ltd., United Kingdom (EURATOM)

>urpose

hemical reprocessing and recovery of uranium and plutonium contained

.n the irradiated fuels.

The disposition of the produced plutonium 1ould be subject to the prior agreement of the United States and the 1rani-um wouh:t eit!rer be- **retueiiiii~ ~; H03 cu**j~pan or s~n~ to the United

tates in the form of UF6 for e'n't1.-chment at a DOE facility.

chedule

'he proposed retransfer would take place on or about early September 9J8.

The actua~ reprocessi~g wjll. not take place for about 10 years.

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DETERMINATION

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N.eed It has been the recent policy of the United States only to approve transfers of this kind on a case by case basis and where there is a clear evidence of need (for example, when the reactor:operator has insufficient storage capacity and needs to arrange a retransfer to avoid disruption in his operations).

In tnis case, there are three power reactors at the Fukushima No. 1 Power Reactor Station (Units 1, 2, and 3), each with its own storage pool as well as three additional reactors under construction.

TEPCO has set up schedules for shutdown and reracking of each reactor to allow for greater spent fuel storage capacity.

(This is in keeping with United States policy favoring an expansion of such storage capacity in cooperating countries like Japan.)

The storage pool at Unit 2, which is the subject of this retransfer request, is planned for reracking iuring September, October, and November of 1978, with a shutdown from

)ecember 1, 1978 through at least March 31, 1979.

The core size for

~o. 2 is 548 assemblies and the existing pool capacity is 820 assemblies, Leaving a difference of 272 assemblies.

A full core discharge capability

~ust be maintained at the reactor because of Japanese policy and

>rocedures.

Also planned maintenance work for Units 1, 2, and 3 over

he next three years requires a full core discharge capability at the

,lant as well as a 6-rnonth shutdown instead of the normal 3-month

hutdown.

Upon reracking, the pool capacity for Unit No. 2 will be

.240 assemblies or 692 after leaving space (548 assemblies) for an

~ergency core discharge.

'or additional data on spaces already filled and the contemplated ischarge in December 1978, see the enclosed Confidential TEPCO letter f March 31, 1978, and the attachment thereto, Tab A and the enclosed nclassified TEPCO letter of March 31, 1978, Tab B.

number of questions were reviewed by the DOE staff with the applicant.

hese were all designed to verify that there was a bonafide and pressing eed for the proposed transfer.

The main questions that were posed and he answers thereto are as follows:

.1.

Why not use one of the other reactor pools for storage of the fuel elements from Unit No. 2 during the reracking period?

.1.

All three pools are running short of space.

(See Tab B)

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3 Q. 2.

Why not use some of th*e extra capacity in one of the other reactor pools after they have been reracked prior to shutdown of Unit No. 2?

A. 2.

The schedule (Data-1) attached to Tab B shows that Units No. l and No. 2 are in reracking or shutdown constantly until December.

TEPCO cannot physically shift spent fuel from one pool to another during reracking work or periodic shutdown.

Thus, it is prevented from shifting these elements into either of the other pools.

(See Tab B)

Q. 3.

Why not change the order of reracking?

~. 3.

The reracking for all three reactors is already scheduled to conform to scheduled shutdowns required.

These shutdowns are required annually under the applicable. regulations and each reactor shutdown is scheduled in accordance with the operational history even if the previous overhaul is prolonged.

Therefore, the order of reracking cannot be changed.

~. 4.

Why not transfer the Unit No. 2 spent fuel to the PNC Reprocessing Plant in Tokai?

~. 4.

TEPCO's contract with PNC provides for shipping some suitable fuel from Unit No. 1, which has been done.

Further allocations among Japanese utilities and shipping dates have not yet been determined so that TEPCO cannot plan on sending the spent fuel to Tokai.

( See Tab B)

!* 5.

Why take any spent f~el out of the Unit No. 2 pool at all when the reracking will provide more than enough capacity for the full core and is scheduled to be completed at the end of November--just before the shutdown at the beginning of December?

. 5.

TEPCO has stated that each reracking is scheduled to take about 3 months but more time may be needed because:

(a)

This is their first experience in re racking;

. (b)

It is difficult to work in the water with spent fuel still in place; (c)

The number of workers at their reactor sites is limited; and

4 (d)

It will be very difficult to share manpower and working hours during the reracking of Unit No. 2 as Units No. 1 and No. 3 will be shutdown for periodic overhaul during the same period.

During these extended shutdowns riser pipes will be replaced (which is very diffic~lt).:

The Unit No. 2 will have to be shutdown even if the reracking has not been completed by the end of November.

(See Tab B)

Other questions and answers are given in Tab B.

Discussion This request falls under the definition of a "subsequent arrangement" in section 131 a.(2)B of the Atomic Energy Act of 1954, as amended (Act) and requires the concurrence of State and consultation with ACDA, NRC, and DOD.

ACDA may, if it deems such action necessary, prepare a iuclear Proliferation Assessment Statemeni.

Interagency procedures 3lso provide for notice to and require comments by Commerce.

Notice of the proposed subsequent arrangement will have to be given at least 15 iays in advarice in the Federal Register, together with the written ietermination of the Secretary of Energy or his delegate that this 1rrangement will not be inimical to the common defense and security.

Jnder section 131 b.(l) of the Act, this retransfer cannot be approved 1ntil the Committee on International Relations of the House and the

ommittee on Fo~eign Relations of the Senate have been provided with a

eport containing the reasons for entering into the arrangement and a

• eriod of 15 days of continuous session has elapsed; provided that the

,ecretary of DOE (by delegation from the President under E.O. 12058)

.an.declare an emergency due to unforeseen circumstances and then the

,eriod shall be 15 calendar days.

ection 131 b.(2) of the Act provides that:

"( 2) the Secretary of Energy may not enter into any subsequent arrangement for the reprocessing of any such material in a facility which has not processed power reactor fuel assemblies or been the subject of subsequent arrangement therefore prior to the date of enactment of the Nuclear Non-Proliferation Act of 1978 or for subsequent retransfer to a non-nuclear-weapon state of any plutonium in quantities greater than 500 grams resulting from such reprocessing, unless in his judgment, and that of the Secretary of State, such reprocessing or retransfer will

J not result in a significant increase of the risk of proliferation beyond that which exists at the time that approval is requested.

Among all the factors in making this judgment, foremost consideration will be given to whether or not the reprocessing or retransfer will take place under conditions that will ensure timely warning to the United States of any diversion well in advance of the time at which the non-nuclear-weapon state could trans-form the diverted material into a nuclear explosive ~evice;"

'.he BNFL facility in the past has processed power reactor fuel

.ssemblies and has been the subject of a subsequent arrangement there-

• ore prior to the date of enactment of the Nuclear Non-Proliferation

.ct of 1978, so this paragraph is not applicable.

owever, section 131 b(3) of the Act provides that:

"( 3) the Secretary of Energy shall attempt to ensure, in entering into any subsequent arrangement for the repro-cessing of any such material in any facility that has processed power reactor fuel assemblies or been the subject of a subsequent arrangement therefore prior to the data of enactment of the Nuclear Non-Proliferation Act of 1978, or for the subsequent retransfer to any non-nuclear-weapon state of any plutonium *in quantities greater than 500 grams resu(ting from such reprocessing, that such reprocessing or retransfer shall take place under condi.tions comparable to those which in his view, and that of the Secretary of State, satisfy the standards set forth in paragraph ( 2)."

1is paragraph is applicabie here and the question therefore arises as

, the attempt to ensure that such reprocessing shall take place under

,nditions which satisfy the standards set forth in paragraph (2).

tis test is felt to be met since paragraph (2) in connection with

.me ly warning of any divers ion, says "wel 1 in advance of the time at

.ich the non-nuclear-weapon state could transfer the diverted material tto a nuclear explosive device 11 (underscoring added).

The United ngdom is a nuclear weapons state and the material will remain the United Kingdom until it is disposed of in accordance with rangements satisfactory to the United States.

Accordingly the threat diversion for nuclear weapons by a nonnuclear weapon state is felt to minimal in this instance.

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6 Of course, all the countries in the European Community, except the United Kingdom and France are nonnuclear-weapons states.

And, a~ will be discussed at greater length under criterion (4) below, prior United States approval is not required for retransfer within Euratom.

However, the United States also has been controlling retransfers within Euratom of separated special nuclear material in cases such as this by a commitment from the non-Euratom shipping country to the following conditions:

(1)

That the spent fuel will be retained by the reprocessor until it may *by reprocessed and that, thereafter, the recovered special nuclear material will be retained by the reprocessor subject to the direction of the shipper.

(2)

That any direction by the shipper to the reprocessor for the transfer or use of the recovered special nuclear material will be subject to the prior approval of the United States.

This second condition is in addition to the right of the United States to prior approval for any transfer of these materials to a country outside Euratom.

The non-EURATOM shipping country agrees to these conditions based upon the processor's contractual pledge to hold the spent fuel, reprocess it, and then use or transfer the recovered material only in accordance with the shipper's instructions.

In the instant case, it is proposed that Japan would be required to assure the United States that it agrees to the above conditions.

Criteria Criteria used for retransfers, in addition to the foregoing requirements, are the same as those set forth for NRG licenses in section 127 of the Act.

The word "export" (or a variation thereof) should be henceforth considered as equivalent to the word "retransfer" (or a variation thereof) in the criteria set forth below.

Criterion (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, and to any special nuclear material used in or produced through the use thereof."

7 Since the United Kingdom is a nuclear weapons state, this criterion 1s satisfied in that IAEA safeguards are not required in the United Kingdom pursuant to the NFT.

Moreover, under Article V of the Additional Agreement for Cooperation of 1960, as amended, which incorporates Article XI, XII and Annex B of the November 8, 1958 Joint Program Agreement, as amended, the Community undertakes the responsibility of establishing and implementing a safeguards and control system designed to give maximum assurance that any material supplied by the United States or generated from such supply will be used solely for peaceful purposes ("Euratom Safeguards System").

The Community is bound to consult and exchange experiences with the IAEA with the objective of establishing a system reasonably compatible with that of the latter.

The Community is responsibly for establishing and maintaining a mutually (with respect to the United States) satisfactory and effective safeguards and controls system in accordance with stated principles.

Euratom safeguards are being applied to material and facilities previously exported or retransferred and subject to the United States-1 Euratom Cooperation Agreements and to special nuclear material used in or produced through the use thereof.

These agreements require these safeguards to be applied to such material and facilities and to the proposed export or retransfer and special nuclear material produced through its use.

Therefore, it appears that the equivalent of criterion (1) is met.

All of the member states of the Community, with the exception of France (a nuclear-weapons state), are parties to the NPT.

An agreement for the IAEA application of safeguards pursuant to the NPT was signed by the IAEA and Belgium, Denmark, the Federal Republic of Germany, Ireland, Italy, Luxembourg, the Netherlands, and the European Atomic Energy Community (EURATOM), on April 15, 1973.

(As a nuclear-weapons state, however the United Kingdom permits the application of IAEA safeguards pursuant to the NPT under a voluntary offer which was signed on September 6, 1976.

Similarly, France has agreed to application of the IAEA safeguards verification system at some of its civil facilities under a France-EURATOM-IAEA trilateral approved by the IAEA's Board of Governors on February 21, 1978.)

The EURATOM accountability system was adapted to that of the IAEA through the publication of Commission Regulation 322/76, which came into force during January 1977.

On February 17, 1977, the Commission of the European Communities notified the IAEA that all of the necessary steps had been taken for the IAEA-EURATOM Safeguards verification

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Agreement pursuant to the NPT to come into force and the Agreement came into force on February 21, 1977.

Currently, EURATOM and the IAEA are negotiating the Subsidiary Arrangements and Facility Attachments which are necessary to bring IAEA verification of EURATOM safeguards into practical effect.

Pending the completion of these negotiations, the IAEA has been conducting ad hoc-inspections under Article 48 and 71A of the Verification Agreement.

Through late 1977, it had conducted more than 80 such inspections at approximately 70 percent of all EURATOM-safeguarded facilities.

Criterion ( 2)

"No such material, facilities, or sens1t1ve 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."

Each Non-Nuclear-Weapons States (NNWS) of the Community is a party to the Nuclear Non-Proliferation Treaty (NPT).

As such, i~ is pledged not to develop nuclear explosive devices for any -purpose.

This pledge applies to any mat~rial, facilities and sensitive nuclear technology previously exported or retransferred to such state by the United States and subject to the United States-EURATOM Agreements for Cooperation and to special nuclear material used in or produced through the use thereof.

Since this pledge will apply to the proposed retransfer and to any special nuclear material produced through its use, it appears that criterion (2) would be met with respect to the NNWS of the Community if any subsequent retransfer were made to a NNWS.

With regard to the two Nuclear-Weapons States (NWS) of the Community, the United Kingdom and France, the proposed retransfer and any special nuclear material produced through its use will be subject to the continuing applicability of the United States-EURATOM Agreements for Cooperation.

Article XI(l) and (3) of the November 8, 1958 Joint Program Agreement, as amended, which is incorporated into the Additional Agreement for Cooperation by virtue of Article V of the Additional Agreement, provide that "no material, including equipment and devices, transferred pursuant to this Agreement" and "no source or special nuclear material utilized in, recovered from, or produced as a result of the use of material, equipment or devices transferred pursuant to this agreement... will b~ used for atomic weapons, or for research or development of atomic weapons or for any other military purpose."

The United States - -with the support of most other major nuclear supplier

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9 the support of most other major nuclear supplier states--has taken the position that nuclear explosive devices are "atomic weapons," within the meaning of this guarantee, regardless of the intended end use of such devices.

Both the United Kingdom and France have accepted this interpretation and, as members of the Nuclear Suppliers Group, have agreed as a matter of national policy to authorize the export of trigger list items "only upon formal governmental assurances from recipients explicitly excluding uses which would result in~ nuclear explosive device (underlining supplied) and have notified the IAEA to this effect.

Therefore, it appears that the equivalent of criterion (2) is met with respect to this transfer.

Criterion ( 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 regulations promulgated by the Nuclear Regulatory Commission pursuant to section 304(d) of the Nuclear Non-Proliferation Act of 1978, physicai security measures shall be deemed adequate if such measures provide a level of protec~ion equivalent to that required by the applicable regulations."

The Nuclear Regulatory Commission has promulgated new regulations pursuant to section 304(d) of P.L.95-242, which requires measures equivalent to those recommended in the IAEA's INFCIRC/225/Revision 1, "The Physical Protection of Nuclear Material."

Each member of the Community has established physical security measures, whi_ch, as a minimum, do meet those recommendations.

In addition, all states in the Community (except Denmark, Ireland, and Luxembourg) also are members of the Nuclear Suppliers Group, and, as such, have agreed to levels of protection, consistent with INFCIRC/225/

Revision 1, to be ensured with respect to nuclear materials and equipment and facilities containing these materials, which are detailed in transmissions of the Nuclear Suppliers Guidelines to the IAEA.

_Therefore, it appears the criterion ( 3) is met.

Criterion ( 4)

"No such materials, facilities, or sensitive nuclear technology proposed to be exported, and no special nuclear material produced through the use

--OONFfflENiI,\\t 10 of such material, will be retransferred to the jurisdiction of any other national 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."

Article XI(Z) of the November 8, 1958 Joint Program Agreement, as amended, which is incorporated in the Additibnal Agreement for Coopera-tion, as amended, by Article V of the latter Agreement, provides that no material (including equipment and devices) may be transferred beyond the control of the EURATOM Community, unless the United States agrees.

Article 1 bis D of the Additional Agreement for Cooperation, as amended, provides that special nuclear material produced through the use of United States-supplied material may be exported to any nation outside the Community or to a group of nations, provided that such nation or group of nations has an appropriate Agreement for Cooperation with the United States or guarantees the peaceful use. of the produced material under safeguards acceptable to the Community and the United States.

The European Community's interpretation.of this language--as set out in an April 15 letter to the Department of State from Fernand Spaak, Head of the Delegation of the Commission of the European Communities--

is that the European Community Supply Agency, prior to any proposed transfer, will consult with the United States to find out whether, in the view of the United States, the proposed recipient of such produced special nuclear material has an Agreement for Cooperation with the United States which is "appropriate." A letter of February 11, 1977 from Fernand Spaak to the Department of Energy (then ERDA) makes clear that this provides the United States a consent right, since the United States has the exclusive ability to decide whether an agreement is "appropriate." This letter states that:

"It is is our understanding that any transfer of recovered materials from the Community of a third country is subject, in accordance with the terms of the EURATOM-United States Agreement for Cooperation, to prior United States authorization."

Therefore, it appears that, with regard to the proposed retransfer and special nuclear material produced through its use, criterion (4) is met.

With respect to transfers within the Community, it should be noted that the use of the words "group of nations" in criterion ( 4) makes clear

-COHFIDENTIAL 11 that no retransfer consent right is required within a group of nations under this criteria.

With respect to this provision, the Senate report states:

"It should be noted that under the U.S.-EURATOM Agi;-eements, the United States does have a right of prior approval on retransfers of certain material outside of the EURATOM Community.

It should also be noted that paragraph 4 does

-not require prior approval with respect to transfers within the EURATOM Community, consistent with United States policy of treating that Community as a [single] entity."

The Congressional intent, in connection with exports, not to require United States consent rights for transfers within the Community is also clear in Section 123 a. (5) of the Atomic Energy Act, as amended, since it requires that the United States seek a guarantee "by the cooperating party" (which, in this case, is EURATOM as a whole).

However, the Executive Branch, before passage of the Nuclear Non-Proliferation Act of 1978, took the position that, w1th respect to retransfers into EURATOM, it was important to keep retransfers for reprocessing limited as much as possible to control the use and transfer of the separated materials, especially plutonium.

Therefore, the need test was developed and the system of control by commitment from the non-EURATOM shipping country.

Criterion (5)

"No such material proposed to be exported and no special nuclear mat~rial 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 1.s obtained for such reprocessing or alteration."

Criterion (5) is met in connection with this retransfer since United States appr~val is being given to the retransfer which is ~eing made for the purpose of reprocessing and the United States, by commitment from the non-EURATOM shipping country (Japan), will have the right of approval prior to any use or transfer of the separated materials whether within or out of EURATOM.

-cnnFlDEP!TlAL. -

Criterion (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."

The proposed export does not involve sensitive nuclear.technology.

Cri~erion (6) is, therefore, not applicable.

Section 128 Criterion Section 128 a.(l) of the Atomic Energy Act establishes the following additional criterion:

"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-weapons 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."

This criterion does not apply to this case since the statutory 18/24-month time period in section 128 has not yet expired.

For the record, however, all nonnuclear-weapon states that are members of the European Atomic Energy Community ate Parties to the NPT and, thus, have agreed to accept IAEA safeguards with respect to all their peaceful nuclear activities.

As indicated above, all such peaceful nuclear activities are currently subject to EURATOM safeguards.

Therefore, the equivalent of this criterion is met for that part of EURATOM.

Since the United Kingdom and France are nuclear-weapon states, this criterion is not applicable to their countries.

ADDITIONAL FACTORS Safeguards Implementation The above discussion of criterion (1) of section 127 of the Atomic Energy Act *reviews the current status of implementation of IAEA-EURATOM safeguards verification arrangements.

DOE believes the framework of commitments, assurances, and safeguards is adequate for the purposes of this export.

-CDNFIBENTIM-

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h irl&,otetHtt GONfIDENTIAl

• 13 Non-Proliferation and Other Foreign Policy Implications There is a long history of cooper at ion and strong bonds.between Japan and the United States and between the member states of the Community and the United States, in the economic and security areas.

Japan and the Connnunity countries have worked closely with the United States in efforts to furthei common nonproliferation objectives, through bilateral cooperative efforts and in such forums as the United Nations, IAEA, and Nuclear Suppliers Group.

More recently, Japan and the Community countries have agreed to participate in the International Fuel Cycle Evaluation and are actively participating in this program in order to develop more proliferation-resistant means to help meet future world energy needs with nuclear power.

Maintaining these essential relation-ships and cooperative arrangements is a primary United States foreign policy objective.

Recommendation That upon the making of the determinations and conclusion of the actions, as set forth under discussion above, this retransfer for reprocessing be approved.

-~-

1.

Present UpcraL.ion l'ru::,*.:i;;i uf Fut11:;l1i.n:.:1,~o. J ~L~1L.i.on unit No. 1 to No. J the Un:i.L :.u. 1 tu 3 c,f 1 i,t1t:.l en r SL.:itiun.

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(._Tur.~ 1.5, 1965)

"Ord(.;r *Lo s pec:.i.:i.'y te clmic::;.;:.l cri tc:*in. with Facility to stor~ fuel o~

1.o The struc*ct.!r~ shall be such t.hnt fuel does not rc:1.ch c.!'i tic~;*,

2.&

Fuel does not melt duG to decay !l(:;:8.*c..

3..

shall be or J.cn.r:s o

2) sufficient to shield radi&.tion from fuclo

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if it r;to:rc s fu.eJ.

APPENDIX B

At-'t-'1:.NU1 X t3

1. .DOE MASS WS H 0457 EDT 1918 JUL ~~ PM 5 3o

[**:ro:n /li*~?ORT AHO

\\:lTERllAT'L SfGROS TO:

MR. NELSON F. SIEVErtING, JR.

• ....,_~~ai----... *.,.,,~---......,-..... _._

DERUTY ASSISTANT SECRETARY FOR INTERNATIONAL PROGRA~S U.S. DEPARTM~NT OF ENERGY WASH I NG TON D. C. 20545 U. S. A.

'ROM:

SHIN MIYAKE GENERAL MANAGER OF NUCLEAR FUELS DEPART~ENT THE TOKYO ELECTRIC POWER COMPANY I NC.

TOKYO JAPA:--J JLY 5, 1973 REF:

tr'.9-10 APPROVAL FOR T~Pco"s rUKUSHifllA I-2 126 8UUDLZS

~

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'l

• ON ' FEBRUARY 16, 1973, W!:": FORMALLY REQUESTED THE J.~PMJESE GOVElHH1ENT AUTHORITIES TO APPLY F'OR U.S. DOE'S MB-IO APPROVAL FOR TRA~SFER OF 126 SPENT FUEL BUNDLES DISCHARGED FROM FUKUSHIMA NO.l NUCLEAR POWER STATIC~ UNIT N0.2 TO BNFL, ENGLAND IN COMING AU Turrn.

AFT~R THAT OUR STAF"FS PRSSENTE:D DOE PEOPLE IN MARCH THE SUPPLEMEN-TAL EXPLANATION$ OF' OUR CASE,, WHY THIS TRANSFER -TO 8NF'L IS m VITALLY NEEDED, AND SUSMITTED SUCH EXPLANATIONS IN WRITING IN OUR LETTER TO YOU DATED MARCH 3 J,, 1973 *

. M~

WE B ELI EVE BY THSSE SUPPLEMENTAL. E 1

XPLANATIONS YOU HAVE F'ULLY UNDERSTOOD THE NSCESITY OF THIS TRANSFER TO SNFL.

THE TRANSPORTATION OF THESE SPENT FUELS FROM JAPAN TO 8 NFL IN U. K. WILL BE MADE BY THE VESSEL,.,PACIFIC FISHER PROVIDED BY

• BNFL, AND HER DEPARTUR~ FROM U.K. PORT IS NOW EXPECT~D BY MIDDLE AUGUST AT LATEST.

PRIOR TO HER SAILING OFF l.1E NEED TO NOTIFY BNFL THAT W~ OBTAINED DoE"s riB-10 APPROVAL FOR OUR FUELS SCHSDULED TO BE SHIPPED, MJD TH E T I ME L ! :1 I T FOR S UC H NOT I F IC AT I ON MUS T B E END OF J UL Y OR TAKING THIS OPPORTUNITY, VE ~ISH TO EXPLAIN ALSO THE PRESENT POSITIO~ OF OUR ~E-RACKI MG WORXS OF TH~ SPENT FUSLS STORAGE I I * ' *

t. f *.:,*.-.. I '(

i',: I:*

,_,1

~

1 J

' I *)

PR08L~MS AS PROC~SS MANAGEMENT, RADIATION MANAGEMENT AND INSPECTION OR *RACK FITTING NEVERTHELESS THIS UNIT IS COMPARATIVELY NEW AND THE CONT~MINATION LEVEL IS LOW AT rHE SAMS TIME.

WE BELIEVE MUCH SEVERER WORKS CANNOT BE AVOIDED FROM UNIT N0.1 AND N0.2 BECAUSE OF THE LONGER OPERATIONAL HISTORIES AND HIGHER OHJTAMUJA TI ONS THAN UNIT NO.3.

ACCORDINGLY UNIT N0.2 INEVITABLY REQUIRES MUCH DIFFICULT PROCESS, AND WE CANNOT ANTICIPATE THE RE-RACKING WORK WILL SUCCESSFULLY FINISHED BY THE TARGET DATE JUST BEFORE THE NEXT PERIODICAL

$-IUTD0WN.

THEREFORE, DUE TO THE ABOVE REAS.OMS WE WOULD LIKE TO ASK AG.C\\IN

~,.,

FOR YOUR SPECIAL CONSIDERATIONS ON OUR VIT~t~ED TO TR.C\\NSFER SPENT FUELS FROM UNIT N0.2 !(J COMING AUTUMN BY ANY MSANS.

SI NC EREL Y YOURS,

!HE END

APPENDIX C

Mr. Harold D. Bengelsdorf Director for Nuclear Affairs International Programs Department of Energy

Dear Mr. Bengelsdorf:

This letter will inform you that NRC has no objection to the proposed retransfer from Japan to the UK of 126 irradiated fuel assemblies (RTD/EU(JA)-20), provided it is subject to the conditions contained in DOE's analysis of the case which accompanied your letter of June 30.

Sincerely, James R. Shea, Director Office of International Programs