ML20138P694
| ML20138P694 | |
| Person / Time | |
|---|---|
| Issue date: | 12/05/1985 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Hunter R GENERAL ACCOUNTING OFFICE |
| Shared Package | |
| ML20138P696 | List: |
| References | |
| NUDOCS 8512260225 | |
| Download: ML20138P694 (14) | |
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- a aerug'o UNITED STATES
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- !" o NUCLEAR REGULATORY COMMISSION f ,1 WASHINGTON, D. C. 20665 ff%
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CHAIRMAN December 5, 1985 Mr. Robert H. Hunter Assistant General Counsel United States General Accounting Office
, Washington, D. C. 20548 Der Mr. Hunter:
I am pleased to respond to your letter of September 27, 1985 requesting the Commission to provide (1) views on the legality of of providing advance U.S. origin approvals spent fuel for retransfer in agreements for reprocessing for cooperation; and (2 )
an interpretation of the test by which the Executive Branch determines that a proposed retransfer for reprocessing or return of plutonium will not significantly increase the risk of proliferation.
Our responses to these questions are set out in the enclosure.
Sincerely,
- ) v .,a . ta p (A kl- L -
Nunzio J. Palladino
Enclosure:
NRC Response to 9/27/85 Questions from GA0 i
0512260225 851205 PDR COMMS NRCC CORRESPONDENCE PDR
1 NRC Response to September 27, 1985 Ouestions from GAO Legality of providing advance approvals for retransfers for reprocessing
- The Comission is, of course, aware of the provisions of Section 123a.(5) and (7) of the Atomic Energy Act of 1954 (the Act), as amended, which require prior approval of the retransfer of U.S. origin material and of alteration in form or content by reprocessing, enrichment or other means.
With that background, the Comission has the following answers to your three specific questions in this area:
Question 1. Would a Presidential waiver be required prior to entaring into 1
an agreement for cooperation that contained an advance approval?
Answer.
In the Comission's view, a Presidential waiver under Section 123a. would
- not be required as a matter of law before entering into an agreement for cooperation that contained an advance approval for retransfer, reprocessing, enrichment or other alteration of U.S. origin material.
4 While ordinarily consent for such. activities would be given on a case by case basis under the Section 131 procedures relating to subsequent l arrangements, there is nothing in Sections 123, 131 or other provisions of the Act that forbids or precludes the inciusion of such consent on a 1
generic basis in advance in an agreement for cooperation. Therefore, provided the agreements meet the remaining requirements of Section 123, no Presidential waiver is required. Further, the opportunity for Congressional review is not precluded by the advance consent provisions; indeed Section 123 provides for a total of ninety days for Congressional review of an agreement for cooperation, while a subsequent arrangement under Section 131 requires only fifteen days for Congressional review of subsequent arrangements involving retransfer and reprocessing.
Ccanissioner Asselstine believes that an agreement for cooperation that contains an advance approval provision circumvents the legislative design of the Act, whether or not a Presidential waiver is required. Section 131.b.(2) contemplates a case-by-case comparison of the risk of proliferation prior to and following a specific request for retransfer, i
reprocessing, enrichment or other alteration. This comparison necessarily involves the consideration of technical and other factors that are subject to change over time. Advance approval prior to the time of any request thwarts the specific determination contemplated by the statute that:
- "...such reprocessing or retransfer will not result in a significant increase of the risk of proliferation beyond that which exists at the time that approval is re%ested." (Emphasisadded). Morehver, ComTssioner Asselstine is To'ncerned by the precedential aspects of including an i
authorization to reprocess spent fuel of U.S.-origin in a 30-year
- agreement for cooperation. Granting such an authorization in a long-term
- international agreement may unduly constrain future U.S. policy on reprocessing and adversely affect the national security. The U.S. policy
on reprocessing has changed in the past and may well change again within the 30-year period of an agreement for cooperation. Instead of attempting to incorporate present policy into an agreement, the U.S. should secure approval rights'over reprocessing in the agreements and retain the flexibility to make a separate policy decision on how those rights will be exercised.
Question 2. Would an agreement that specifies that spent fuel will be transferred or reprocessed only if "the parties agree" and that also incorporates Minutes that provide the advance approval meet the requirements of Section 123(a)(5) and (7)?
Answer.
See answer to question 1. An Agreed Minute in an agreement for cooperation has the same force and effect as if embodied in the text of the agreement itself. In the agreements for cooperation with Sweden and Norway, the agreements state that the understandings in the Agreed Minute (s) therein will be an integral part of the agreement (s). .
i i I Question 3. Are there proliferation implications in including advance
- app mval in an agreement?
l Answer.
i
! Yes. Advance approval provisions are among the several provisions in agreements for cooperation that have potential proliferation implications. The Comission i notes that the Executive Branch has established a policy of giving favorable consideration to advance approvals for reprocessing only when the reprocessing I will take place in countries with advanced nuclear programs and with good
!- nonproliferation credentials.
Related questions concerning specific procedures for subsequent arrangements j
{ Question 1. Does an agreement that contains an advance approval provision circumvent the legislative design of the Act?
l Answer.
No. See answer to prior question 1.
Question 2. Are the requirements of Section 131 for (a) consultation with the Secretary of Defense (b) publication in the Federal Register, ,
(c) advance report to Congress prior to entry into the Agreement and (d) determination of the increased risk of proliferation met if the agreement with advance approval is entered into?
Answer.
l A description of the Section 123 requirements corresponding to the above i Section 131 requirements follows and indicates that there are some similarities between the two:
i (a) Consultation with the Secretary of Defense:
l Although Section 123 does not require that the Defense Department be I
consultedoneachagreement,itdoesprovideinSection1.23(d)forthe
- Defense Department to give its views, upon request by the appropriate House i
and Senate Committees, as to whether safeguards and other controls
- contained therein provide an adequate framework to ensure that any exports i as contemplated by the agreement will not be inimical or constitute an unreasonable risk to the comon defense and security.
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(b) Publication in the Federal Register:
There is no corresponding provision in Section 123.
(c) Advance report to Congress prior to entry into the Agreement:
Section 123 provides for a substantial Congress review period, a total of ninety days of continuous session, prior to entering into agreements for cooperation.
(d) Determination on the increased risk of proliferation:
While Section 123 does not specifically require a determination about the increased risk of proliferation, it does require that the Arms Control and Disarmament Agency provide to the President (and the Congress) a Nuclear Proliferation Assessment Statement regarding the adequacy of safeguards and other control mechanisms contained in the agreement for cooperation to ensure that any assistance furnished thereunder will not be used to further any military or nuclear explosive purpose. Section 123 also requires that the President make a written determination that performance of the proposed agreement will promote and will not constitute an unreasonable risk to.the common defense and security. .
Interoretation of the test for determining that there is no increase in the risk OT proliferation in reprocessing approval decisions Question 1. What are the factors that are used in determining " timely warning?"
Answer.
The most recent draft DOE analysis of timely warning, in connectio1 with the proposed extension of the Tokai-Mura reprocessing agreement, has significantly expanded the factors DOE considers in its timely warning analysis. Attachment A is the timely warning portion of the proposed new framework for DOE's reviews of subsequent arrangements involving timely warning. This framework was developed by DOE staff as a result of recent interagency discussions involving NRC and is still undergoing further interagency review and refinement. We understand it is not _a final document and may be subject to change.
ATTACHMENT A OUTLINE OF ANALYSIS STRUCTURE A. Timely Warning
- 1. Nuclear Facilities available in country
- a. Power plants
- b. Fuel cycle facilities
- c. Significant nuclear research facilities
- 2. Summary of capability of scientific / technical personnel available in country
- 3. Availability of significant quantities of weapons-usable special nuclear material
- a. U.S.-controlled material
- b. Indigenous material
- c. Material from non-U.S. sources
- 4. History and status of any weapons-related studies and research in country, including any history of procurement of weapons-usable or test-related components
- 5. Industrial capability relating to production of a nuclerr device, including estimate of capability to produce a nuclear exolosive device
- 6. Safeguards factors
- a. Degree of acceptance of safeguards on all peaceful nuclear facilities
- b. Record of cocoeration and compliance with IAEA safeguards
- c. Existence of facility attachments for those facilities-involved with request
- d. Other safeguards applied, e.g., EURATOM -
- 7. Likelihood of U.S. awareness of indications of olanned diversion b
t
Question 2. Is the " timely warning" analysis a technical analysis or a political determination?
Answer.
In the view of the Commission, " timely warning" is primarily a technical matter involving consideration of:
- 1. The availability and quality of facilities, equipment, technology, and expertise for conversion of diverted material into a weapons usable form.
- 2. The amount and type of nuclear material available in the country and which may be made available to the country from other sources.
- 3. The amount of time needed by the country to transform diverted
, material into a nuclear explosive device.
- 4. The quality of IAEA safeguards inspections in the country, including the probability that these safeguards would in fact detect a diversion and the rapidity with which such detection would occur.
- 5. The existence of multinational controls, multinational ownership, or other barriers which could limit access to material.
- 6. The type of response to a diversion - whether bilateral, multilateral or international - which would be needed.
- 7. The role of intelligence resources and other information sources in facilitating consideration of the above factors.
Question 3. May political factors be included in the " timely warning" analysis?
If so, what is the legal basis for their inclusion and what weight are they given?
Answer.
In the Commission's view, the legislative history of the Nuclear Non-Proliferation Act (NNPA) indicates that Congress intended timely warning to be primarily a technical matter involving such factors as safeguards measures applied to the nuclear material and the technical ease of incorporating the material into a nuclear explosive device. Such factors as a country's non-proliferation credentials, its security and foreign policy relationship with the U.S. and its political stability should be considered by.the Secretary of Energy only in making the overall judgement as to whether there will be a "significant increase in the risk of proliferation."
Question 4. How does the " timely warning" analysis relate to the IAEA's use of j
" timely detection" assessment?
Answer.
The IAEA's " timely detection" assessment concerns its ability to detect, through its safeguards system, a diversion of a significant quantity of nuclear material within the time needed to convert the diverted material to a weapons-usable form. The IAEA's timely detection assessment thus concerns a time interval which spans from the time of diversion of the material by a country to the time
- at which the IAEA detects that diversion. This time interval comprises at least a portion of the time interval of concern in " timely warning" analysis. The
- time interval critical to timely warning concerns the period from diversion of the material to the time the material is converted and used in a nuclear explosive device. Timely warning is considered possible if the U.S. (or international community, if appropriate) can take sufficient action during the time after detection of a diversion to prevent the diverting country from manufacturing and using a nuclear explosive. Thus, the ability of the IAEA to meet its timely detection goals affects the ability cf U.S. to state that
" timely warning" of a diversion is possible. If the IAEA meets its timely detection goal, the U.S. is assured of at least some reaction time to a diversion (reaction time being the other time interval of timely warning along with detection time). Hence, timely warning is made more likely. If the IAEA is unable to meet its detection goals, this could significantly affect the ability of the U.S. to react to a diversion in a timely manner and thus possibly make it more difficult to ensure that timely warning exists.
Question 5. How is Congress informed of the factors and their weight that went into the test of whether a particular retransfer will significantly increase the risk of proliferation? Is there any written record of the determination?
Answer.
In accordance with Section 131 of the Atomic Energy Act, Congress is forwarded a copy of the DOE analysis of a retransfer request. Congress receives the analysis after the relevant federal agencies have been consulted and given their comments on the request. Agency comments are generally forwarded to Congress along with the DOE analysis in cases where the comments may have bearing on Congressional consideration of the retransfer request.
The DOE analyses specifically state that timely warning is the foremost factor to be taken into account in determining whether a significant increase of the risk of proliferation will result from a retransfer. The analyses then describe other factors, for example, a country's nonproliferation credentials, its membership in the IAEA, and physical security arrangements associated with the retransfer. No relative weights are assigned to these factors; thus each factor's contribution to the overall determination is unclear to the NRC.
Question 6. What particular factors went into the determination of " timely warnin'g" with respect to the retransfer request of Japan and Switzerland? What weight was each factor given? Was the analysis of " timely warning" on the technical capabilities of each country involved? Did political factors impact on the determination of
" timely warning?" How was the final determination that the retransfer would not significantly increase the risk of proliferation reached?
Answer.
A. Japan It is assu,ned that the retransfer request of Japan referred to is the request to retransfer 189 kilograms of plutonium from France to Japan for use as fuel in the J0Y0 fast breeder reactor. From reading DOE's analysis, it appears that the only factors considered in the " timely warning" analysis for this case concerned whether IAEA safeguards were being effectively applied to the Japanese facilities where the plutonium was to be located (AttachmentB). Based on correspondence at the time between DOE and NRC, it appears that DOE may also have considered other political factors in its timely warning analysis such as Japan's non-proliferation posture, including factors that may affect this posture such as military threats from neighboring countries. The weight DOE assioned to each of these factors is not known. To our knowledge, the analysis did not address the nuclear technical capabilities of Japan. DOE's final determination on the case was apparently reached on consideration of the following factors (see Attachment B):
o Timely warning o Jaoan's adherence to the NPT and its lack of incentives to acquire nuclear explosives o Close and important relationship between the U.S. and Japan o The application of IAEA safeguards to verify Japan's commitments made through the U.S.-Japan Agreement for Nuclear Cooperation o Japan's membership in the IAEA
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o Special physical security arrangements made for the transport of the plutonium from France to Japan o Prior approval rights of U.S. required if Japcn chooses to transfer the plutonium outside of Japan.
. g h
ATTACHMENT B Excerpt from DOE Analysis of Japanese Pu Retransfer Request dated May 1984 1
Timely warning is t'he foremost factor to be taken into account in determining whether subsequent arrangements for reprocessing, retransfer of spent fuel for reprocessing, or retransfer of resulting separated plutonium in excess of 500 grams would result in a significant increase of the risk of proliferation beyond that which existed at the time that approval was requested. " Timely warning,"
as defined in the NNPA, is not an IAEA concept. Although international safeguards are but one means of providing such warning, we believe that effective IAEA safeguards are being applied at the facilities where the plutonium is to be located. The IAEA has, for a number of years, been applying international safeguards at fuel fabrication plants manufacturing plutonium bearing reactor fuels, as well as at various types of reactors engaged in testing and evaluation of these 'uels. Each year the IAEA's staff has informed the Board of Governors that it is " reasonable to conclude that the nuclear material under Agency safeguards remained in peaceful nuclear activities..."
Japan's adherence to the NPT and the lack of incentives that this nation has to acquire nuclear explosive devices, the close and important relationship that the United States has with this country and the serious risk to these relationships if Japan were to abrogate its solemn legal coninitments to the U.S. and finally, the application of IAEA safeguards to verify the commitments made by Japan through the U.S.-Japan Agreement for Cooperation all indicate that this retransfer will not result in a significant increase of the risk of proliferation beyond that which existed at the time that approval was requested.
The requesting country, Japan, is of course, an important member of the IAEA, a supporter of IAEA safeguards and a nuclear supplier nation. Jaoan also has played an important role in developing the so-called Zangger list of items that serves to trigger IAEA safeguards, and adheres to the London Supplier Guidelines.
Special arrangements have been made for the transportation of this material, and for its physical protection during shipment. An unclassified description of the i transportation and physical protection plan is at Annex D. The physical protection measures to be used meet or exceed accepted international standards in all respects. The Government of Japan is coordinating activities related to the physical protection of this shipment with the Governments of France and the United States.
Finally, as noted, under the terms of the U.S.-Japan Agreement for Cooperation, the prior approval of the United States would be required for any transfer of the plutonium to a country outside Japan. Such a transfer would constitute a new subsequent rrangement pursuant to Section 131 of the Atomic Energy Act and as such would have to be considered on its own merits by the_ Executive Branch and the Congress when plutonium is to be transferred in quantities greater than 500 grams.
All of these factors support a judgment that the oroposed U.S. approval of the use of the recovered plutonium within Japan will not result in a significant increase of the risk of proliferation.
l
.o _
Answer.
B. Switzerland .
It is assumed that the retransfer request of Switzerland refers to the request to retransfer 120 kilograms of seoarated plutonium from reprocessing plants in France to the ALKEM plant in West Germany and then to Switzerland for use in the Beznau power reactor and the PROTEUS research reactor finalized in 1985. The DOE timely warning analysis, again as presented in the written DOE analysis, apoears to be concerned only with whether IAEA safeguards were effectively applied to the Swiss and West German facilities where the plutonium was to be located (see Attachment C).
The Swiss case analysis contains more information on the aspects of international safeguards application considered by DOE in its analysis than in the Japanese retransfer case. Based on DOE's written presentation of its timely warning analysis, it is not possible for the NRC to say if any political factors or other technical factors were considered and if so what their relative weights might have been. The technical nuclear capabilities of Switzerland and the FRG apparently were not addressed.
In its final determination that the retransfer would not result in a significant increase in the risk of proliferation, DOE apparent 1y' considered the following factors:
- 1. Timely warning
- 2. The nonproliferation credentials of Switzerland and the FRG, including their adherence to the NPT, their lack of incentives to acquire nuclear explosive devices, and their membership in and support of the IAEA
- 3. The close and important relationships between each country and the U.S.
- 4. Their resoective commitments under the U.S.-Switzerland and U.S.-EURATOM Agreements for Nuclear Coooeration
- 5. Application of EURATOM as well as IAEA safeguards while material is in the FRG
- 6. Physical security arrangements for the transportation of the plutonium involved in the retransfer
- 7. Prior approval rights of U.S. before any transfer of the material outside of Switzerland w
Attachment C Excerpt from DOE Analysis of Swiss Plutonium Retransfer As required by Section 131 of the Atomic Energy Act, and in consultation with the Department of State, the Arms Control and Disarmament Agency, the Nuclear Regulatory Comission, and the Departments of Commerce and Defense, the Department of Energy has considered whether the proposed retransfer will result in a significant increase of the risk of proliferation beyond that which existed at the time that approval was requested, and has considered whether there would be timely warning "of any diversion well in advance of the time at which the non-nuclear-weapon state could transform the diverted material into a nuclear explosive device." Together with the Department of State, we have concluded that, taking into account the nonproliferation comitments of the countries involved, where the reprocessing will occur, and the fact that the derived plutonium may not be used or retransferred to Switzerland or any other state without explicit U.S. consent, this approval will not result in a significant
, increase in the risk of proliferation.
More specifically, the following factors were taken into account in making this determination: Timely warning is the foremost factor to be taken into account in '
determining whether subsequent arrangements for reprocessing, retransfer of spent fuel for reprocessing, or retransfer of resulting separated plutonium in excess of 500 grams would result in a significant increase in the risk of proliferation beyond that which exists at the time the approval was requested.
" Timely warning", as defined in the NNPA, is not an IAEA concept. Although safeguards are but one means of providing such warning, we believe that effective IAEA safeguards are being applied at the facilities where the plutonium is to be located.
Also considered were the nonproliferation credentials of Switzerland and the
, Federal Republic of Gemany. Diversion would precede a substantial change in their nonproliferation comitments and their foreign and defense policies which would virtually certainly be known well in advance of a diversion. Their adherence to the NPT and the lack of incentives that these two nations have to acquire nuclear explosive devices, the close and important relationship that the United States has with these countries and the serious risk to these relationships if either state were to abrogate its solemn legal comitments to the U.S., and finally, the application of IAEA safeguards to verify the comitments made by these States through the U.S.-EURATOM and U.S.-Switzerland Agreements for Cooperation. This retransfer will not result in a significant increase in the risk of proliferation beyond that which existed at the time the approval was requested.
The requesting country, Switzerland, is of course, an important member of the i
.IAEA, an adherent to the NPT, a supporter of IAEA safeguards, and a nuclear ,
supplier nation. Switzerland also has olayed an important role in developing l the so-called Zangger list of items that serves to trigger IAEA safeguards, and adheres to the London Supplier Guidelines.
l
2 We have been informed by EURATOM officials that safeguards are applied to the separated plutonium ~at Cap-La-Hague under existing arrangements between EURATOM and the French Government for peaceful activities at Cap-La-Hague.
When the recovered plutonium is shipped to the Federal Republic of Germany for fabrication into fuel elements at the ALKEM facility, it will be subject to IAEA safeguards. As a party to the NPT, the FRG has agreed pursuant to Article III (1) of the NPT to accept IAEA safeguards on all its peaceful nuclear activities.
The FRG, along with the seven other non-nuclear weapon state members of EURATOM, has signed a safeguards agreement with the IAEA (INFCIRC/193) which entered into force on February 21, 1977. While the negotiation of the facility attachment at the ALKEM plant has not yet been completed, IAEA safeguards are presently being applied to that facility. (See Annex D for more detailed discussions of safeguarJs at ALKEM.)
While the material is in Switzerland, it will be subject to IAEA safeguards pursuant to Switzerland's NPT safeguards agreement (INFCIRC/264). Physical security arrangements for the protection of U.S. origin special nuclear materials within the FRG and Switzerland have been reviewed, and are considered to meet the requirements of IAEA INFIRC/225/Rev. 1.
Finally, as noted, under the terms of the U.S.-Swiss Agreement for Cooperation, the prior approval of the United States would be required for any transfer of the plutonium to a country outside Switzerland. Such a transfer would constitute a new subsequent arrangement pursuant to Section 131 of the Atomic Energy Act and as such would have to be considered on its own merits by the Executive Branch and the Congress when plutonium is to be transferred in quantities greater than 500 grams.
All of these factors support a judgment that the proposed U.S. approval of the fabrication of the recovered plutonium within EURATOM, and its subsequent use within Switzerland, will not result in a significant increase of the risk of proliferation.
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