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Nuclear Regulatory Commission (1)
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Nuclear Regulatory Commission (1)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
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India
Nuclear Regulatory Commission. (01/19/1975 - )
Nuclear energy
Nuclear nonproliferation
Exports
Treaties
Law and legislation
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The original documents are located in Box 35, folder "Nuclear Regulatory Commission (1)"
of the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Nuclear Export file
MEMORANDUM TO:
NSC - Dr. DAVID D. ELLIOTT
FROM:
OES/SCI/AE - Myron B. Kratzer
SUBJECT:
Requirements for Export Licensing
Determination under the Atomic
Energy Act
Following up on our conversation of this morning, I have attempted
to summarize below the principle points in support of the view that individual
export transactions under an Agreement for Cooperation do not require a finding
that such exports are "non-inimicable to the common defense and security."
1. Agreements for cooperation in the peaceful uses of atomic
energy are contained under Section 123 of the Atomic Energy Act. Sub-
section b requires that "the President has approved and authorized the
execution of the agreement and made a determination in writing that the
performance of the agreement will promote and will not constitute an
unreasonable risk to the common defense and security. 11 Thus, a
determination is made at the time the agreement is signed, stating
not merely that the agreement meets U.S. security interests but that its
performance meets these objectives. I belive that this structure was
intentional from the outset, inasmuch as it was recognized in the earliest
days of the peaceful nuclear program that we must offer reasonable
assurance of continued supply to other nations.
2. The interpretation that the President's determination under
Section 123(b) is intended to be a continuing one is supported by the new provision
under Section 144(b) and (c) which deals with the agreements for cooperation
GERALD
LIBRARY
Digitized from Box 35 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
2
in the more sensitive field of military uses of atomic energy. Under these
provisions, added to the Act in 1958, the President is required to determine
from time to time that "the proposed cooperation will promote and will not
constitute an unreasonable risk to the common defense and security. " No
such requirement for renewed determinations during the course of the
implementation of agreements for cooperation in civil uses was added to
Section 144(a), which deals with agreements in civil uses.
3. Additional provisions relating to export licensing of specific
types of nuclear goods are covered in other sections of the Act. Chapter 10
deals with licenses for production and utilization facilities. Section 103
covers licenses for commercial facility, i. , power reactors, while
Section 104 covers licenses for research and development facilities.
In point of fact, licenses are rarely if ever issued for commercial power
reactors since these are built abroad from components derived from a
number of sources. At most, individual components of such reactors are
shipped from the U.S. under export licenses issued by the Department of
Commerce. Those reactors which have been the subject of export licenses
as complete units are usually research reactors exported under Section 104.
Under Section 104(d) no license may be issued for the export except under terms
of an agreement for cooperation although component parts specially
identified by the Commission may be exported without an agreement for
cooperation on a determination that the export will not constitute an un-
reasonable risk to the common defense and security. The language
BERALE which FORD VIBRARY
3
appears in the last sentence of Section 104(d) that no license may be
issued to "any person within the United States" if this would be
inimicable to the common defense and security clearly relates, in my view,
to activities within the United States and not to the act of export itself.
The export of source material is covered under Section 64. It is
entirely clear that under this Section the export of source material can
take place either under an agreement for cooperation or on a determination
that the export will not be inimicable. A similar approach is provided for
by Section 82 in relation to export of by-products material. These sections
contemplate that distribution of source and by-product material would
normally be accomplished by the Commission itself, i.e., AEC, and this indeed
was the normal procedure in the early days of the program.
The foreign distribution of special nuclear material is covered by
Section 54 and 57. In practice this is by far the most important area of
exports since these occur on a repetitive basis over the lifetime of such
reactors. Here again the original procedure dealt with exports directly
by the Commission. Under Section 54 it is clear that the only export
requirement is that it be pursuant to the agreement for cooperation. After
the 1964 amendment to the Atomic Energy Act, export by licensees
became the normal procedure. Section 57 (c) provides that the Commission
shall not distribute any special nuclear material to any person not under there
jurisdiction of the U.S. except under Section 54, i. e., under an agreement
for cooperation. Alternatively, the Commission may not distribute any
special nuclear material to any person within the U.S. except on a finding
4
of noninimicability. The structure of this section makes it clear that
"within the United States" referes to distribution of material for uses
within the U.S., and not simply to possession by licensees for the purpose
of exports. Section 53 which now authorizes the issuance of licenses for
the import or export of special nuclear material originally dealt with the
domestic distribution of special nuclear material and the Section is still so
entitled. The language authorizing import and export licenses was added
at the time of the private ownership amendments of 1964. Significantly it
refers only to export under the terms of an agreement for cooperation and
contains no language calling for a finding of non-inimicability.
In summary, I conclude that:
1. Exports of the more sensitive items, i.e., complete reactors
and special nuclear material, are to take place only under an agreement for
cooperation. When this requirement is met, there is no need or room for the
added requirement of a non-inimicability finding on a case-by-case basis.
The President has made the definitive finding that performance on the
agreement will not be inimical to U.S. security interests.
2. In the case of export of less sensitive items, i.e., source
material, by-product material, or reactor components, the Act provides
two alternatives for export: under an agreement for cooperation or on a
finding of non-inimicability. This latter alternative was intended for the
export of these less sensitive items where no agreement had been executied
and was indeed frequently applied in just that way.
GERALD LIBRARY
5
3. There is language which appears in several sections of the
Act calling for a finding of non-inimicability when issuing licenses to
persons "within the United States. 11 When viewed in the overall structure
summarized above, I believe that it becomes clear theat the words "within
the United States" relate to activities which the licensee will undertake
within the U.S., and not to the act of export itself.
It is my distinct recollection that as we began to issue licenses for the
export of reactors and special nuclear material, we informed the Regulatory
side of the Commission only that the proposed export was pursuant to an
agreement for cooperation. I have been informed that this procedure has been
modified in recent years and that a "dual determination" is made, i.e., that
the export is not only pursuant to an agreement for cooperation but also that
it is non-inimicable. I have discussed the interpretation discussed above with
several attorneys, including Jack Pender and Mark Rowden. Mark informed me
today that he had looked again at this question following my conversation with
him on this point some two weeks ago. It is his conclusion that the Act was
unclear and that either interpretation can be defended; by practice, however,
the AEC has essentially opted for the approa ch requiring a dual certification.
Mark also states, and I havenot had an opportunity to review this personally,
that the Commission regulations call for the dual determination thus further
strengthening this interpretation.
FOKO
is
Whatever the practice has been, I am convinced that the interpretation
that an export under an agreement for cooperation need not be subject to
a separate determination of non-inimicability, is the correct one. Indeed,
6
I believe there is a strong basis on which to conclude, in view of the
President's determination under Section 123(c), that any further determination
by any other authority is improper and contrary to the Act.
FORD LIBRARY
Announced 2/2/75
Stencilled
To Archives 2/2/76
EXECUTIVE ORDER
- 11902
-
PROCEDURES FOR AN EXPORT LICENSING POLICY
AS TO NUCLEAR MATERIALS AND EQUIPMENT
The Energy Reorganization Act of 1974 transferred
to the United States Nuclear Regulatory Commission the
licensing and related regulatory functions previously
exercised by the Atomic Energy Commission under the Atomic
Energy Act of 1954, as amended.
The exercise of discretion and control over nuclear
exports within the limits of law concerns the authority and
responsibility of the President with respect to the conduct
of foreign policy and the ensuring of the common defense
and security.
It is essential that the Executive branch inform
the Nuclear Regulatory Commission of its views before the
Commission issues or denies a license, or grants an
exemption.
NOW, THEREFORE, by virtue of the authority vested
in me by the Constitution and statutes of the United States
of America, including the Atomic Energy Act of 1954, as
amended (42 U.S.C. 2011 et seq.), and as President of the
United States of America, it is hereby ordered as follows:
Section 1. (a) The Secretary of State is designated
to receive from the Nuclear Regulatory Commission a copy of
each export license application, each proposal by the Nuclear
Regulatory Commission to issue a general license for export,
and each proposal by the Nuclear Regulatory Commission for
exemption from the requirement for a license, which may
involve a determination, pursuant to the Atomic Energy Act
of 1954, as amended, that the issuance of the license or
GERALD FORD LIBRARY
2
exemption from the requirement for a license will, or will
not, be inimical to or constitute an unreasonable risk to
the common defense and security.
(b) The Secretary of State shall ensure that a copy
of each such application, proposed general license, or
proposed exemption is received by the Secretary of
Defense, the Secretary of Commerce, the Administrator of
the United States Energy Research and Development Adminis-
tration, hereinafter referred to as the Administrator, the
Director of the Arms Control and Disarmament Agency,
hereinafter referred to as the Director, and the head
of any other department or agency which may have an
interest therein, in order to afford them the opportunity
to express their views, if any, on whether the license
should be issued or the exemption granted.
Sec. 2. Within thirty days of receipt of a copy
of a license application, proposed general license, or
proposed exemption, the Secretary of Defense, the Secretary
of Commerce, the Administrator, the Director, and the head
of any other agency or department to which such copy has
been transmitted, shall each transmit to the Secretary of
State his views, if any, on whether and under what conditions
the license should be issued or the exemption granted.
Sec. 3. The Secretary of State shall, after the
provisions of section 2 of this order have been complied
with, transmit to the Secretary of Defense, the Secretary
of Commerce, the Administrator, the Director, and the head
of any other department or agency who has expressed his
views thereon, a proposed position of the Executive branch
as to whether the license should be issued or the exemption
granted, including a proposed judgment as to whether issuance
of the license or granting of the exemption will, or will
not, be inimical to or constitute an unreasonable risk
to the common defense and security.
FORO LIBRARY 39
3
Sec. 4. If the heads of departments and agencies
specified in section 2 of this order are unable to agree
upon a position for the Executive branch, the Secretary of
State shall refer the matter to the Chairman of the Under
Secretaries Committee of the National Security Council in
order to obtain a decision. In the event the Under
Secretaries Committee is unable to reach a decision, the
Chairman of that Committee shall refer the matter to the
President for his decision.
Sec. 5. The Secretary of State, after taking
the actions required by this order, shall notify the Nuclear
Regulatory Commission of the position of the Executive branch
as to whether the license should be issued or the exemption
granted, including the judgment of the Executive branch as
to whether issuance of the license or granting of the exemp-
tion will, or will not, be inimical to or constitute an
unreasonable risk to the common defense and security.
The Executive branch position shall be supported by
relevant information and documentation as appropriate to
the proceedings before the Nuclear Regulatory Commission.
Herald R. Ind
THE WHITE HOUSE,
February 2, 1976.
BERALD ,FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
July 16, 1975
MEMORANDUM FOR:
GLENN SCHLEEDE
THROUGH:
PHIL BUCHEN T.W.B.
FROM:
DUDLEY CHAPMAN NC
SUBJECT:
Protection of Information in
Civilian Nuclear Installations
The issued raised by the letter from the Nuclear Regulatory
Commission is whether new safeguards for commercial nuclear
industry information should be handled under the existing classifica-
tion procedures (E. O. 11652) or some new procedure established
specifically for the commercial nuclear industry. The majority
view of the Commission favors the use of existing classification
procedures. Commissioner Gilinsky dissents, arguing it would
be an overextension of the concept of national security to apply it
to the risks of criminal activity associated with use of nuclear
energy in the commercial sector. He also objects to categoriza-
tion of essentially private data in private hands as "official
information. " Commissioner Gilinsky favors the study of an
alternative procedure to meet what he categorizes as the "inescapable"
need for some degree of control.
I am in complete agreement with Commissioner Gilinsky.
To the extent that there is a need to extend protection of commercial
nuclear industry information to protect it from criminal activity
within the United States, that purpose has no necessary connection
with national security. There is a valid and urgent need for protection
against domestic criminal elements of information that may be of
little or no importance for national security reasons. Even informa-
tion known to the Russians, for example, may need to be protected
internally to keep it out of domestic criminal hands.
2
To stretch the concept of national security for this internal purpose,
would be much less acceptable politically than to establish a new
safeguard system addressed specifically to domestic protection.
Such a system would not suffer from the negative connotations that
are now rampant with respect to national security classification,
and should find positive support for the purpose of preventing
nuclear incidents at home.
Administratively, our study of this issue should reflect the domestic
and civilian, as distinct from national security, purpose of the
program. This suggests the desirability of giving the lead to the
Attorney General and the Director of the FBI. Commissioner
Gilinsky should, of course, be given a full opportunity to participate
in any study and in the formulation of recommendations.
The matter deserves a very high priority.
THE WHITE HOUSE
WASHINGTON
Date 7/16
TO: Phic Buchea
FROM: DUDLEY CHAPMAN
I have revised This
memo to clear up The
question you had.
510
THE WHITE HOUSE
WASHINGTON
July 11, 1975
TO:
DUDLEY Glenn CHAPMAN
FROM:
Glenn Schleede
What do you think of the
arguments of the dissident
Commissioner in the attached?
Attachment
510
THE WHITE HOUSE
WASHINGTON
July 11, 1975
TO:
DUDEEY Glenn CHAPMAN
FROM:
Glenn Schleede
What do you think of the
arguments of the dissident
Commissioner in the attached?
Attachment
CONF IDENTIAL
UNITED STATES
NUCLEAR REGULATORY COMMISSION
DECLASSIFIED
WASHINGTON, D. C. 20555
E.O. 12958 Sec. 3.6
98.31, #7; NRCltr 6118/01
MAY 2 0 1975
By dal NARA, Date 6/25/01
The President
The White House
Dear Mr. President:
I wish to convey to you the views of the Nuclear Regulatory
Commission on the study of the national security aspects of
releasing safeguards information carried out under NSSM 216.
The Commission is in unanimous agreement with the general
proposition that effective means to protect certain safeguards
information are a necessary element in an overall system designed
to guard against theft or diversion of nuclear materials or sabo-
tage of civil nuclear installations. It would appear that
achieving this objective - whether by classification or by some
combination of other means such as described in the study -- will
require restrictions on access to such information within the
industry and by. the public. This means the application of an
industrial security program to private activities not now subject
to security restrictions and also entails the imposition of limita-
tions greater than are now the case on public participation in
safeguards-related aspects of the nuclear regulatory process.
Thus, what is involved is a major step - a step which departs
from a consistent policy over the past twenty years of maximizing
the public's ability to participate in all aspects of nuclear
regulatory proceedings.
Given these considerations, it is our view that any action to
impose added security controls on information of the subject type
should be carefully tailored so as to apply the minimum restrictions
needed to achieve safeguards objectives. The Commission would put
forth, in this connection, the following operative principles:
- Restrictions should apply only to those activities
where such a requirement is definitely established
for safeguards purposes (principally, to those fuel
cycle activities which involve the handling of signifi-
cant quantities of strategic nuclear materials, with
only limited application to nuclear power plants)
REVOLUTION
AMERICAN
BICENTENNIAL
CONFIDENTIAL
Document Transmitted
1776-1976
Herewith C.
NATIONA:
INFORMATION
CONF IDENT IAL
The President
- 2 -
MAY 2 0 1975
A new security program need not apply across-
the-board to the entire nuclear power industry.
- As regards those activities which are covered,
restrictions should be applied to the minimum
information necessary to achieve safeguards
objectives.
- Any such restrictions should be applied only when
and to the extent that some other measure will not
supply the protection deemed necessary for safeguards
purposes.
With these principles in mind, the Commission has also carefully
weighed the matter of whether the national security classification
system is the regime best suited to give safeguards information
the requisite degree of protection. The majority of the Commission
believes that it is. In reaching. this conclusion, two basic objec-
tives were considered:'
1. Assuring the trustworthiness of persons generating
and having access to the subject information.
2. Protecting the information from unauthorized disclosure
while in the possession of NRC.
Short of special legislation - which would not appear to be
necessary at this juncture - national security classification is
the only single way to accomplish both objectives; and, on balance,
it is probably the soundest available way to achieve each of these
objectives. The Commission majority, in considering its position,
was particularly mindful that national security classification
under the Executive Order provides a framework which assures the
procedural rights of persons affected and is a system familiar to
the Congress, the courts and the public. The Commission would urge,
however, that the firmest possible underpinnings be provided for
application of the national security classification system to this
type of information (i.e., information which is privately generated
within a regulatory framework). This may make it desirable to
amend Executive Order 11652 so as to give such information explicit
coverage thereunder.
In sum, based on the foregoing considerations and with the limita-
tions indicated, the majority of the Commissioners are of the view
that certain types of safeguards information should be covered by
security restrictions and that the classification system established
under Executive Order 11652 provides an appropriate basis for
protecting such information.
CONF IDENTIAL
The President
- 3 -
MAY 2 0 1975
Commissioner Gilinsky disagrees with the majority view. He
believes that the disadvantages of employing the national
security classification system, pursuant to Executive Order
11652, are so great, both for substantive reasons and those
related to public perceptions, that more careful examination of
alternative approaches should be undertaken before a final
decision is made. He believes the NSSM 216 study to be inade-
quate in two respects: with regard to the analysis of alternatives
for protecting information, and with regard to the related dis-
cussion of the impact of national security classification upon
public acceptability of civilian nuclear programs. The Commissioner
also suggests that, in consideration of the potentially momentous
and long-term impact of the decision in question on a critical
civilian industry, further study of this issue should be done
with Domestic Council participation. The background of these
views is set forth at greater length in an enclosure to this
letter.
Turning to the matter of types of safeguards information warrant-
ing protection, the full Commission believes that -- apart from
the means adopted to protect the information - at least the
security plans of critical fuel cycle facilities should be given -
protection from unauthorized disclosure additional to that pro-
vided today. However, with regard to light water reactors
using uranium fuel of low enrichment, the Commission believes
that alternative means of protecting security plans from unau-
thorized disclosure, or compensating physical security measures,
should be further analyzed in light of the nature and consequences
of sabotage to such facilities before applying national security
restrictions in this area. We also believe that the portions of
the study dealing with the disclosure of reports on inventory
discrepancy of special nuclear material do not provide an adequate
basis for deciding under what conditions such information should
be withheld. We therefore urge that, before you make any
decision on withholding information of this kind from public
disclosure, you direct that further analysis be undertaken.
Specifically, we recommend analysis of the relationship between
the release of inventory discrepancy data - at any time - and
the credibility of hoaxes. We also recommend the development of
alternative criteria for release of data (e.g., withholding of
-a small, but particularly sensitive, part of the data; aggregat-
ing data), taking into account the possibility that hoaxes may
not become any less credible after a predetermined interval, such
as the six months assumed in the study.
CONFIDENTIAL
TAL
The President
- 4 -
MAY 2 0 1375
In order to permit the earliest possible decision on the
unresolved issues, we would urge that the NSSM 216 Working
Group be directed to complete quickly a detailed analysis of
the means which might be employed to protect inventory dis-
crepancy data, while at the same time keeping the public
adequately informed of this aspect of the civil nuclear
industry --- a public policy consideration which the Commission
deems to be of prime importance. The Group should also carry
out, simultaneously, an additional study of the risks associated
with sabotage of light water reactors and of the need for
additional information safeguards to reduce these risks.
Finally, in line with our earlier observation, we urge that the
Justice Department carefully review the question of whether the
present provisions of Executive Order 11652 are sufficiently
comprehensive to cover information of this type.
The Nuclear Regulatory Commission staff will be pleased to
participate in additional analyses such as those we have
recommended, as well as in the necessary follow-on work to
identify specific safeguards information that should be classified
or otherwise protected in accordance with decisions made. Prior
to making our determinations on what specific safeguards informa--
tion will be classified or otherwise protected, we will afford
minations. the NSC staff an opportunity to comment on our proposed deter-
On behalf of the entire Commission, I would like to express our
appreciation for the opportunity provided the Commission staff
to participate in this study and for the invitation to the
Commission to furnish you with its views.
Respectfully yours,
Original signed by
William A. Anders
William A. Anders
Chairman
Enclosure:
Commissioner Gilinsky Comment
CONF IDENTIAL
COMMISSIONER GILINSKY'S COMMENT CONCERNING
NATIONAL SECURITY CLASSIFICATION OF CIVILIAN NUCLEAR INDUSTRY DATA
In my view, commercial nuclear industry safeguards information is not of
the type contemplated in Executive Order 11652. The Order refers to
"official information within the Federal Government" which "bears directly
on the effectiveness of our national defense and the conduct of our for-
eign relations." It is, I believe, an overextension of the concept of
national security to apply it to the risks of criminal activity associated
with use of nuclear energy in the commercial sector. Furthermore, cate-
gorization of essentially private data in private hands as "official
information" on the basis that the industry in question is federally
licensed is, I believe, unprecedented. We should approach this uncharted
area with great caution.
It is regrettable that any sort of information control is required here.
Unfortunately, it seems inescapable that some degree of control is needed.
But before we institute more extensive controls than now exist, we should
have a better understanding than we have today of the threats against which
we must provide protection.
We will not, in the end, deny ourselves means that are essential to our
domestic peace. But if we are wise, we shall clearly circumscribe the
domain of restrictive measures. A broad interpretation of national security
with regard to nuclear power could lead step-by-step to extensive classifica-
tion with consequent chilling effects on the public's need to know and debate.
It may turn out that no other course is open for protecting certain nuclear
industry information, such as facility security plans, which of course need
to be protected. But in view of the far-reaching implications of such a
step - in particular, introduction of a military element into our civilian
electric power industry - it should not be taken without a searching and
comprehensive study of alternatives; this, in my opinion, has not yet been
accomplished. For example, the NSSM 216 study dismissed too readily the
possibility of supplementing NRC's present classification and clearance
authority by means of suitable legislation.
There is still time to re-study the matter. Industry is disinclined to
reveal any of the information in question. The NRC is under pressure to
reveal only material inventory discrepancy data. In the interim, the
latter data could adequately be handled in accordance with the guidelines
proposed by the NSSM 216 study - in most cases this would mean release
after a six-month period.
CONFIDENTIAL
BECLASSISHED
AUTHORITY RAC nuf. PB-1-13-2-3 5/5/08
FORD & LIBRAR RALD
BY
NLF, DATE 6/29/09
160
CONF IDENTIAL
- 2 -
Finally, I believe that use of national security classification would
adversely affect the acceptability of nuclear power in this country.
Such use would unnecessarily feed the existing apprehensions and fears
among part of the public over the dangers of organized, malevolent acts
involving nuclear facilities, and it would tend to support charges that
nuclear energy can be employed in a secure manner only by resorting to
procedures more characteristic of a garrison state than those of the
traditional free enterprise system in the United States.
CONF IDENTIAL
FORD & LIBRARY RALA
140
DECLASSIFIED
E.O. 12958 Sec. 3.6
MR 98-31, etdept ets
By due NARA, Date 6/22/01
E
0
COPY
DP IMMED
MJA856SBA977
DE RUSBAE #3407 0651301
0 051300Z MAR 76
FM AMEMBASSY NEW DELHI
TO SECSTATE WASHDC IMMEDIATE 4460
e B N F D E N T t NEW DELHI 3407
FOLLOWING TEL BOMBAY 0566 DTD 05 MAR 76 RCVD NEW DELHI
BEING REPEATED TO YOU. QUOTE
E B N F D N A t BOMBAY 0566
EO 11652: GOS
TAGS: TECH ENRG IN
SUBJECT: TARAPUR NUCLEAR FUEL EXPORT LICENSE
REF: STATE 52153
1. AS J.C.SHAH, LIKE CHAIRMAN SETHNA, IS OUT OF TOWN FOR PE
DURATION OF THIS WEEK, THERE IS NO ONE AT EITHER THE IAEC OR AT
THE INDIAN ATOMIC POWER AUTHORITY WHO CAN OFFICIALLY CONFIRM OR
PROVIDE DATA TO SUPPORT CHAIRMAN SETHNA'S AND J.C.SHAH'S STATE-
MENTS THAT MARCH 15 IS THE ULTIMATE DATE FOR RECEIPT OF ENRICHED
URANIUM TO AVDID ALOWDOWN AND PERHAPS EVENTUALLY SHUTDOWN OF
TARAPUR POWER REACTORS. HOWEVER, CONGEN DID MANAGE TO TALK WITH
A SENIOR TECHNICIAN WHO IS WELL VERSED ON THIS SUBJECT AND WHO
PROVIDED CONSIDERABLE DETAIL TO THROW LIGHT ON EFFECT ON NON-
RECEIPT OF ENRICHED URANIUM. IN VIEW OF SETHNA'S EXTREME SENSITIV-
ITY ABOUT QUOTING ALMOST ANYONE OTHER THAN HIMSELF ON MATTERS OF
GREAT IMPORTANCE TO INDIA'S NUCLEAR PROGRAMS, WE WILL NOT BE ABLE
TO PUBLICLY CITE IAEC OFFICIAL AS SOURCE OF THIS INFORMATION
ALTHOUGH CONGEN IS QUITE CONFIDENT OF ITS ACCURACY AND THAT IT
WILL ULTIMATELY BE BASIS OF WHATEVER PUBLIC STATEMENT SETHNA
PROVIDES ON THIS POINT.
2. IAEC SOURCE SAYS THAT PROBLEM HAS TO BE VIEWED IN TERMS OF NFC
PRODUCTION CAPACITY AND PROCESS. HE OUTLINED PROBLEM AS FOLLOWS:
HEXAFLORIDE (UF-6), THE ENRICHED URANIUM PROVIDED BY THE US, IS
CONVERTED INTO PELLETS OF URANIUM OXIDE, WHICH, IN TURN, ARE
INSERTED INTO THE FUEL RODS WHICH EVENTUALLY ARE GROUPED TOGETHER
INTO BUNDLES OF 36 EACH FOR LOADING INTO REACTORS. EACH BUNDLE IS
MADE UP OF RDDS CONTAINING THREE DIFFERENT ENRICHMENTS, THE GE
SYSTEM PURCHASED BY THE IAEC. THE BREAKDOWN OF VARIOUS ENRICHMENTS
IN EACH BUNDLE IS APPROXIMATELY 22, 11 AND 3. AS THE URANIUM
PSN:017866 PAGE 01
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HEXAFLORIDE IS PURCHASED IN CYLINDERS CONTAINING 1.5 TONS EACH,
THE VARIOUS ENRICHMENTS ARE MADE IN BATCHES WHICH ALLOWS THE NFC
TO USE UP COMPLETE CYLINDERS so AT ANY ONE TIME THERE ARE A FEW
SPARE RODS OF VARIOUS ENRICHMENTS IN INVENTORY. ANOTHER COMPLI-
CATION IN THE PRODUCTION PROCESS IS THAT THE FACILITY HAS TO BE
COMPLETELY CLEANED UP AFTER EACH PARTICULAR SET OF ENRICHMENT RODS
ARE RUN THROUGH.
3. OUR SOURCE ESTIMATES THAT THE COMPLETE LEAD TIME FROM APPROVAL
OF THE LICENSE APPLICATION TO COMPLETION OF AN INTEGRATED BUNDLE
IS 9 TO 11 MONTHS, INCLUDING AN AVERAGE OCEAN SHIPMENT TIME OF 60
DAYS. AFTER ARRIVAL AT HYDERABAD, 5-1/2 TO 6 MONTHS ARE REQUIRED
FOR THE COMPLETION OF THE INTEGRATED BUNDLES OF 36 RODS. THE
ANNUAL NEEDS OF THE TWIN TARAPUR REACTORS ARE FOR 130 RODS. THE
CAPACITY OF THE NFC FOR PRODUCTION OF TARAPUR TYPE FUEL IS
ESTIMATED AT 10 PER CENT GREATER THAN THE NEEDS OF TARAPUR AND
MIGHT UNDER ALL-OUT OPERATIONAL PUSH REACH 150 ROOS PER YEAR.
4. ON MARCH 15, OR THEREABOUTS - BUT CERTAINLY NOT LATER THAN
APRIL 15 - THE NFC PRODUCTION SCHEDULE FOR TARAPUR WILL BE
SLOWED DOWN AS THE FACILITY WILL NO LONGER HAVE SUPPLIES OF THE
THREE GRADES OF ENRICHED URANIUM REQUIRED FOR TARAPUR. SOMETIME
IN APRIL OR MAY THE OUTPUT AT TARAPUR WOULD HAVE TO BE REDUCED
AND WITHIN 5 TO 6 MONTHS, BARRING A NEW SUPPLY DR ALTERNATIVE
SOURCES WHICH I AM TOLD ND ONE AT THE IAEC CAN FORESEE, TARAPUR
WOULD SHUT DOWN COMPLETELY, ASSUMING THAT IT OPERATES UP TO THAT
POINT TO THE MAXIMUM POSSIBLE WITH THE FUEL AVAILABLE.
5. MY SOURCE STRESSED THAT THESE DATA ARE ESSENTIALLY CORRECT,
BUT THERE ARE SOME FLEXIBILITIES IN THE DEADLINES, BUT THEY ARE
NOT GREAT. HE EMPHASIZED THAT UNLESS FUEL IS FORTHCOMING FOR
TARAPUR WITHIN THE NEXT 2 OR 3 WEEKS, SOME ADDITIONAL ELECTRICITY
CUTBACKS IN WESTERN INDIA WILL ENSUE AND ANY PROTRACTED DELAYS,
LIKE 2 OR 3 MONTHS, WILL ALMOST CERTAINLY RESULT IN MAJOR NEW
RESTRICTIONS ON ELECTRICITY USAGE. WE ARE REPORTING SEPARATELY A
3DAY ELECTRICITY HOLIDAY THAT WPGL BE NECESSARY BECAUSE OF THE
SHUTDOWN OF MAHARASHTRA'S MAJOR HYDRO FACILITY WHICH CURRENTLY HAS
INSTALLED CAPACITY OF ABOUT 550 MW IN ORDER TO PUT IN TWO
ADDITIONAL GENERATORS OF 60 AND 80 MW. THIS ILLUSTRATES THE
PROBLEM WESTERN INDIA IS NOW ENCOUNTERING IN MEETING ITS POWER
REQUIREMENTS. THEY HAVE INSUFFICIENT CAPACITY TO MEET
ESSENTIAL INDUSTRIAL AND COMMERCIAL DEMANDS, SO ANY REDUCTION
CUTS IMMEDIATELY AND SHARPLY INTO EMPLOYMENT AND INCOME.
COURTNEY
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PUGLEAR REGULATORY
UNITED STATES
NUCLEAR REGULATORY COMMISSION
STATES
COMMISSION
WASHINGTON, D.C. 20555
UNITED
*****
March 5, 1976
Mr. George Springsteen
Executive Secretary
Department of State
Washington, D.C.
Attention: Myron Kratzer, Acting Assistant
Secretary of State (OES)
Dear Mr. Springsteen:
On March 2, 1976, the Nuclear Regulatory Commission was served
with petitions seeking leave to intervene in two license
applications for the export of special nuclear material to
India (License Nos. XSNM-805 and XSNM-845). Copies of these
petitions have been furnished previously to your Department
throùgh Acting Assistant Secretary Myron Kratzer. The
petitioners (Sierra Club, Natural Resources Defense Council,
and Union of Concerned Scientists) also request a hearing
in connection with the Commission's consideration of the
applications.
These petitions constitute the first requests for interven-
tion and hearing on an export licensing application for
special nuclear materials received by either the NRC or its
predecessor the Atomic Energy Commission. Before ruling on
the several issues presented, the Commission wishes to obtain
further information and views of concerned government agencies
and others to assist it in making its decisions. Accordingly,
and consistent with the procedures outlined in Executive
Order No. 11902 for furnishing Executive Branch views on
nuclear export license applications to the NRC, we invite
you to submit views and comments on the issues raised in the
petitions.
Also, the Commission believes it would be appropriate for you
to inform the Government of India of the NRC's intended
course of action for determining the issues raised by the
petitions, and its willingness to entertain any views that
government may wish to express, either for submission through
your Department or independently.
FORD is LIBRARY 0ERALD
George Springsteen
- 2 -
March 5, 1976
In this regard, the Commission has asked that written state-
ments be filed with it no later than 5:00 p.m., Friday,
March 12, 1976, and has scheduled a preliminary oral hearing
on issues relevant to the petitions at 10:00 a.m., on
Wednesday, March 17, 1976. The hearing will be held in the
Commission's Conference Room (Room 1115) at 1717 H Street,
N.W., Washington, D.C.
The oral hearing will be addressed to the need or desirabil-
ity of conducting a hearing on the applications for export
licenses, the matters proper to be considered in such a
hearing, the procedures to be observed, the standing of
petitioners to participate in those proceedings, and the
timeliness of the petitions, and not to the issuance or not
of the licenses themselves. If the Commission decides to
conduct hearings on one or both applications, those hear-
ings will be held at a later date. However, a full written
exposition of facts and argument bearing on each of the con-
tentions made in the motions for leave to intervene is
desired.
In particular, the Commission invites each of the partici-
pants to address the following questions in written and oral
presentations:
(1) On what date were notices of the license applications
in XSNM-805 and-845 placed in the Public Document Room
or actually made known to the petitioners or their
attorneys?
(2) Assuming a petition to intervene in the circumstances
of this case to be otherwise proper, what standard
should govern the timeliness of a petition?
(3) Do you consider that the present petitions are timely?
(4) Are there special factors, such as the possibility of
harm to foreign relations interests, that would warrant
treating one petition differently from the other with
respect to its timeliness? If the impact of any such
factors depend significantly upon the promptness with
which the export licenses which are the subject of the
two petitions are issued, what is the latest time each
license might be issued to avoid this impact, taking
FORD i LIBRARY 038470
George Springsteen
- 3 -
March 5, 1976
into account such feasible alternative methods of
transportation and other options which would extend
this time period to the fullest extent possible?
(5) In your view, do either of the present petitions state
circumstances requiring or making it advisable in the
public interest to hold public hearings?
(6) If a public hearing were held, what rules of procedure
should govern?
(7) What procedures should apply to the receipt by the
Commission of sensitive or classified information
bearing on foreign relations issues and the Commis-
sion's common defense and security responsibilities?
(8) If a hearing is granted by the Commission on the
Tarapur export license applications, are there any
issues raised by petitioners which should be excluded
from consideration as falling outside the NRC's juris-
diction?
If you have any questions concerning the mechanics of the
scheduled hearing or submission of written comments, please
contact the Commission's General Counsel, Mr. Peter Strauss,
at 634-1398 or 492-7375.
Sincerely,
Samuel J. Chilk
Secretary
CO:
All parties
The Assistant to the President
for National Security Affairs
The White House
GERALD FORD LIBRART
Before the
UNITED STATES
NUCLEAR REGULATORY COMMISSION
Washington, D.C. 20555
In the Matter of the Application
)
of Edlow International Company,
)
as Agent for the Government of
)
Docket No. XSNM-845
India, to Export Special Nuclear
)
Material
)
PETITION OF THE NATURAL RESOURCES DEFENSE COUNCIL, INC.,
THE SIERRA CLUB AND THE UNION OF CONCERNED SCIENTISTS
FOR LEAVE TO INTERVENE
Pursuant to Section 189 (a) of the Atomic Energy Act of
1954, as amended, 42 U.S.C. $2239 (a), and applicable rules and
regulations of the United States Nuclear Regulatory Commission
(the "Commission"), including 10 C.F.R. $2.714, the Natural
Resources Defense Council, Inc. ("NRDC"), the Sierra Club and
the Union of Concerned Scientists ("UCS") hereby respectfully
petition the Commission for leave to intervene as parties in
opposition to the proposed application dated October 21, 1975,
of Edlow International Company, as agent for the Government of
India, for a license to export special nuclear material (463.64 kgs.
U235 in 18371.4 kgs U enriched to a maximum of 2.71 percent) for
use in the Tarapur Atomic Power Station ("Tarapur"), India.
They further request a hearing in connection with the Commission's
consideration of such application.
Discussion
FORD is LIBRARY GERALD
1. Interests of Petitioners
Petitioners NRDC and the Sierra Club are both national, non-
profit membership organizations which seek to intervene on their
-2-
own behalf and on behalf of their members in this proceeding.
NRDC and the Sierra Club are environmental organizations com-
mitted to the protection of the human environment and public
health and safety. They have a combined membership in excess
of 175, 000 persons in the United States and abroad, which in-
cludes persons who are citizens of or reside in India and Pakistan.
Petitioner UCS is a non-profit, tax exempt organization which
seeks to intervene on its own behalf in this proceeding. UCS is
a coalition of scientists, engineers, and other professionals
concerned about the impact of technology on society. It conducts
research on a wide variety of public policy and scientific
questions, and seeks to promote and ensure the rational and safe
use of modern technology. UCS has taken a major interest in the
U.S. nuclear power program in general and the export of nuclear
equipment, fuels and technology in particular.
With respect to this proceeding, all three Petitioners
contend that they have important institutional interests which
will be directly affected by its outcome. They are actively en-
gaged in disseminating information to. the public concerning environ-
mental and public policy issues in general and nuclear power in
particular. They further are seeking to promote the wise use of
technology and natural resources and the development of sound
energy policy. Their interest in and ability to continue to carry
out these functions is significantly and adversely impaired by the
absence of a full, open and independent review by the Commission
GERALD LIBRARY
-3-
of the common defense and security, health and safety, and
environmental issues raised by the pending application.
Petitioners NRDC and the Sierra Club contend, in addition,
that the interests of their members will be directly affected
by the outcome of this proceeding. Their members who travel to
or reside in India may be exposed to the risks associated with
the operation of Tarapur. Moreover, because of the potential
worldwide harm associated with the risk of diversion or theft
of exported special nuclear material and the use thereof for
destructive purposes, as well as the risk of major radioactivity
releases at Tarapur resulting from accident, sabotage or armed
attack, all their members' interests in the maintenance of a
safe, healthful and productive environment are directly threatened
by the granting of the pending application.
Petitioners have no other means to protect their interests
in this proceeding, and those interests are not now represented
by existing parties. Their petition is not interposed for delay
or to broaden the proper scope of the proceeding. Further, Peti-
tioners believe their participation will assist in developing a
sound record.
The specific interests of NRDC, the Sierra Club and UCS and
how those interests will be affected are more fully set forth in
the affidavits of J. Gustave Speth, Charles Clusen, and Daniel
F. Ford attached hereto as Appendices 1, 2, and 3, respectively.
FORD i LIBRARY GERALD
-4-
II. Contentions of Petitioners
The risks inherent in the export of special nuclear
material are well-known. As a necessary consequence of its
utilization in a power reactor such as Tarapur, plutonium and
highly radioactive waste products are generated. Plutonium may
be either openly or clandestinely diverted by nation-states for
fabrication into explosive devices which threaten international
stability and world order, as well as the common defense and
security of the United States. Moreover, it may be stolen by
terrorist organizations for the purpose of producing a bomb or
creating other weapons of terrible destructive capability,
i.e., plutonium aerosols which could be released anywhere in
the world. Additionally, a power reactor, such as Tarapur,
in which the special nuclear material is utilized may be the
object of sabotage or armed attack, aimed at causing the release
of enormous quantities of radioactivity or of literally holding
a city or country hostage to political demands. Use of special
nuclear material in a power reactor, such as Tarapur, further
carries with it the possibility that accidental mechanisms will
cause its release into the environment, with untold damage to
the health and safety of exposed populations. Finally, in the
absence of long term waste management solutions, high level
radioactive wastes, which will pose hazards for ensuing genera-
tions, may be introduced into the environment, causing death,
disease and genetic mutation to living organisms. Should any
FORD : GERALD LIBRARY
-5-
of these eventualities occur, the extent of damage and other ad-
verse consequences may not be bounded by national frontiers and
certainly may not be limited to the Indian subcontinent.
The general risks inherent in the export of special nuclear
material are magnified in the specific case of fuel shipments to
India. Risks of diversion, theft and sabotage may be particularly
acute. India is not a party to the Treaty on the Non-Proliferation
of Nuclear Weapons (the "NPT"). 1/ Thus, it has not committed
itself internationally to forswear the development of nuclear weapons,
and it has proceeded to develop and detonate a nuclear explosive
device fabricated from unsafeguarded nuclear fuel irradiated in a
reactor supplied for peaceful purposes only. Moreover, because
it has not adhered to the NPT, and because its bilateral Agreement
for Cooperation Concerning Civil Uses of Atomic Energy with the
United States 2/ contains no provision to the contrary, it has
maintained and continues to maintain nuclear facilities which are
either only partially safeguarded or which are totally free from
international and United States safeguards against their use for
the production of nuclear weaponry. .In such circumstances, the
1% Done at Washington, London and Moscow, July 1, 1968; entered
into force for the United States, March 5, 1970, 21 U.S.T. 483
T.I.A.S. No. 6839
2/ Done at Washington, August 8, 1963; entered into force
October 5, 1963, T.I.A.S. No. 5446.
:
FORD
GERALD
continued shipment of special nuclear material to Tarapur funda-
mentally undercuts the long-standing non-proliferation policy of
the United States as embodied in the NPT, discriminating against
those countries which have undertaken NPT obligations and effect-
ively sanctioning India's refusal to accept those obligations.
It can only have the effect of encouraging other countries to
ignore the prohibition against nuclear weapons development, and,
within the region, it may continue to increase the insecurity of
other nations, leading to even further proliferation.
Health and safety risks attendant upon the shipment of
special nuclear material to Tarapur may also be significant.
Testimony presented on January 30, 1976, at hearings held by the
United States Senate Committee on Government Operations indicates
that operations at Tarapur have resulted in the leakage of sub-
stantial radioactivity, and that high radioactivity levels have
forced turnover in plant personnel, leaving less well trained re-
placements in charge of many operations. The continued shipment
of special nuclear material to Tarapur may aggravate these problems
and increase the threat of a major nuclear accident at Tarapur,
with repercussions not just for the health and safety of affected
populations, but for the United States' relations with India and
its other trading partners.
Specifically, Petitioners contend that the Applicant has
not demonstrated, and the Commission cannot properly determine,
that the granting of the pending application will not be inimical
to or constitute an unreasonable risk to "the common defense and
MENRIT GERALD FORD
security," within the meaning of Sections 3 (d) and 53 (b) of the
Atomic Energy Act of 1954, 42 U.S.C. §§2013 (d), 2073 (b), and
Executive Order 11902, 41 Fed. Reg. 4877 (February 3, 1976), or
that such action would not be "inimical to the interests of the
United States," within the meaning of the Commission's regulations,
10 C.F.R. $70.31 (e). Petitioners further contend that the grant-
ing of the pending application would be in violation of the
requirements of Sections 3(d) and 53 (b) of the Atomic Energy
Act of 1954, 42 U.S.C. §§2013 (d) and 2073(b), which require that
Commission actions not be inconsistent with the "health and
safety of the public." Petitioners additionally contend that the
pending application cannot be granted until it has been established
in accordance with the requirements of the National Environmental
Policy Act of 1969, 42 U.S.C. S$4321 et seq. ("NEPA") and the
Commission's implementing regulations, 10 C.F.R. Part 51, that
such action is appropriate. Finally, Petitioners contend that
granting the pending application would be inconsistent with and
in violation of (a) Article I of the NPT, which prohibits the
United States from transferring "nuclear weapons or other nuclear
explosive devices or control over such weapons or explosive de-
vices directly or indirectly" to any nation and from "assist[ing]
...
any non-nuclear weapon State to manufacture or otherwise acquire
nuclear weapons or other nuclear explosive devices, or control over
such weapons or explosive devices," and (b) Article III of the NPT
which prohibits the transfer to special nuclear material to any
non-weapons State in the absence of safeguards on all nuclear
activities within its territory, or under it control or jurisdict
GERAL OFORD TIBRARY
-8-
In support of their contentions, Petitioners maintain
that, for both procedural and substantive reasons, the Commission
is unable to make the determinations required by law as a pre-
condition for the issuance of an export license for special nuclear
material to be shipped to Tarapur. Procedurally, with regard to
the pending application, the Commission has issued no public
notice of its receipt and consideration, is applying no criteria
to judge facts and information relevant to its licensing decisions,
has not consulted directly with other federal agencies having
relevant expertise, and has neither obtained nor analyzed all
relevant facts and information, so as to enable it to exercise
its independent licensing judgment with regard to safeguards and
health and safety risks associated with the shipment of special
nuclear materials to Tarapur. Moreover, it has not prepared,
circulated for comment and considered in its decisionmaking pro-
cess, in accordance with Section 102 (2) (C) of NEPA, 42 U.S.C.
$4332 (2) (C), a detailed environmental impact statement, covering
the pending application.
Substantively, given India's failure to ratify the NPT,
its position with regard to non-proliferation, and the significant
possibility that international conflict with such neighboring
countries as Pakistan and China might disrupt safeguards agree-
ments and severely threaten the security of nuclear materials
and facilities, there is inadequate assurance that issuance
of the license will meet the standards of the Atomic Energy
Act and the Commission's implementing regulations with
FORD & LIBRARY
-9-
regard to protection of the common defense and security and the
interests of the United States. Further, such standards cannot
be met in this proceeding because the United States has failed
to require India, inter alia, (a) absolutely to refrain from the
development of further nuclear explosive devices: (b) to permit
safeguards on all of its nuclear facilities; (c) to refrain from
developing national enrichment and reprocessing facilities;
(d) to agree, prior to the shipment of fuel to Tarapur, to safe-
guards and physical security requirements for any future reproces-
sing of such fuel, should such reprocessing be permitted; (e) to
establish physical security requirements applicable to Tarapur;
(f) to permit additional bilateral safeguards on Tarapur and re-
lated facilities; and (g) to permit U.S. control over the dis-
position of plutonium produced at Tarapur. Finally, the Commission
cannot lawfully determine that issuance of the license will meet
the standards of the Atomic Energy Act and the Commission's im-
plementing regulations with respect to protection of the health
and safety of the public and the interests of the United States
because the United States has failed, inter alia, to require
India to meet the above-mentioned conditions, and to establish
effective programs to ensure that adequate health and safety
standards are applied and enforced in the operation of Tarapur
and that repair and maintenance capability is sufficient to ensure
safe reactor operation.
The detailed contentions of Petitioners and the bases for
FORD & OFFACO LIBRARY Speth,
them are more fully set forth in the affidavit of J. Gustave
attached hereto as Appendix 4.
-10-
III. Request for Financial Assistance
Pursuant to the provisions of law and regulations now in
existence or to be subsequently adopted, Petitioners request that
the Commission provide them with financial assistance to enable
them to represent fully their views and the views of their
members. At an appropriate time, Petitioners will submit a
detailed request for financial assistance.
Conclusion
Based upon this Petition and the supporting affidavits,
Petitioners request that leave to intervene be granted and
that a hearing be ordered in this proceeding.
Dated: Washington, D.C.
March 1, 1976
Respectfully submitted,
level Eldon V.C. Greenberg
Richard A. Frank
Center for Law and Social Policy
1751 N Street, N.W.
Washington, D.C. 20036
(202) 872-0670
Counsel for Petitioners
J. Gustave Speth, Esquire
S. Jacob Scherr, Esquire
Natural Resources Defense Council, Inc.
917 15th Street, N.W.
Washington, D.C. 20005
(202) 737-5000
Of Counsel
FORD & 93RALD LIBRARY
-11-
Affirmation
I affirm that I am the duly authorized counsel for
Petitioners in this proceeding and that the statements con-
tained in this Petition are true and correct to the best of
my personal knowledge.
Eldon V.C. Greenberg
Subscribed and sworn to before
me this jst day of march
1976.
June Notary a Public Truby
My Commission Expires March 31, isel
FORD i 078830 LIBRARY
-12-
Affirmation
I affirm that I am the duly authorized counsel for
Petitioners in this proceeding and that the statements con-
tained in this Petition are true and correct to the best of
my personal knowledge.
Rill A X
Richard A. Frank
Subscribed and sworn to before
me this 1st day of march
1976.
June Notary M Public Truby why
My Cotamission Expires Match 31, 198
FORDO & GERALD LIBRARY
Appendix 1
Before the
UNITED STATES
NUCLEAR REGULATORY COMMISSION
Washington, D.C. 20555
In the Matter of the Application
)
of Edlow International Company,
)
Docket No. XSNM-845
as Agent for the Government of
)
India, to Export Special Nuclear
)
Material
)
AFFIDAVIT OF J. GUSTAVE SPETH
IN SUPPORT OF THE PETITION OF THE
NATURAL RESOURCES DEFENSE COUNCIL, INC.
FOR LEAVE TO INTERVENE
CITY OF WASHINGTON
)
DISTRICT OF COLUMBIA ) SS:
J. GUSTAVE SPETH, being first duly sworn, deposes and
says:
1. I am an attorney on the staff of Petitioner, Natural
Resources Defense Council, Inc. ("NRDC"), with an office at 917
15th Street, N.W., Washington, D.C. 20005. I am a member of the
Bar of the Court of Appeals of the District of Columbia. I am
familiar with the facts set forth in this affidavit, which I
make in support of NRDC's petition for leave to intervene in the
above-captioned proceeding.
2. NRDC is a non profit, public benefit membership corpora
tion organized and existing under the laws of the State of New
York. NRDC is a charitable organization exempt from taxation
under Section 501 (c) (3) of the Internal Revenue Code. NRDC'
BERALD FORD LIBRARY
-2-
principal office and place of business is located at 15 West
44th Street, New York, New York. It maintains other offices
at 917 Fifteenth Street, N.W., Washington, D.C., and at 664
Hamilton Avenue, Palo Alto, California. NRDC has a membership
in the United States and abroad of more than 22,000 persons,
including scientists, lawyers, educators, and other citizens
dedicated to the defense and preservation of the human environ-
ment and the wise use of natural resources. Other persons
support NRDC's objectives by financial contributions and
personal efforts.
3. NRDC's members include citizens of India and Pakistan.
In addition, its members have travelled in the past and can
be expected to travel on the Indian subcontinent.
4. The objectives of NRDC include:
(a) to maintain and enhance environmental quality;
(b) to monitor federal departments and regulatory
agencies to ensure that environmental values are fully considered
in decisionmaking, and, in particular, to ensure that federal
statutes designed to protect and enhance the environment are
fully and properly implemented;
(c) to improve federal agency decisionmaking which
affects the environment by commenting, furnishing information,
and participating in administrative proceedings;
FORD & LIBRA
(d) to select and undertake environmental lawsuits and
administrative actions which have a potential for establishing
widely applicable precedent for saving or reclaiming some
important aspect of the environment, and, in particular, which
require federal agencies to meet legal obligations established
in federal statutes designed to protect and enhance the environ-
ment; and
(e) to provide a central, national focus for scientists,
lawyers, and educators, and concerned citizens in an effort to
make our courts and administrative agencies effective instruments
of environmental protection.
5. NRDC has had a special interest in preventing
harm to the international environment. It has established
an International Project with two main objectives:
(a) to monitor and influence decisions of United States
government agencies and international agencies which affect the
quality of the international environment; and
(b) to make NRDC's environmental expertise systematically
available to foréign environmental groups so as to enhance their
effectiveness.
6.
In pursuit of its objectives, NRDC has been involved
in numerous proceedings involving the Nuclear Regulatory
Commission (the "Commission") and its predecessor, the Atomic
Energy Commission, including domestic reactor licensing, rule-
making, and administrative reviews of proposed nuclear
wastFord BERALD LIBRARY
-4-
management, liquid metal fast breeder reactor and plutonium
recycle programs. In particular, as regards the export of nuclear
equipment, fuel and technology, NRDC was a plaintiff in the lawsuit
against the Atomic Energy Commission, the Department of State and
the Export-Import Bank of the United States seeking preparation
of an environmental impact statement on U.S. nuclear power export
activities (Sierra Club, et al. V. Energy Research and Development
Administration, et al., D.D.C. Civil Action No. 1867-73), and it
has played an active and vigorous role in the administrative
review of the impact statement resulting from such suit, comment-
ing extensively at each opportunity for public input in the review
process. NRDC has also commented on the international aspects of
domestic waste management and enrichment proposals in the context
of NEPA reviews of such proposals, and it has testified before
Congressional committees reviewing controls over nuclear exports.
7. NRDC, in addition to its institutional interests, has
a further interest in this proceeding to protect the health and
safety of its members and others similarly situated from the
risks occasioned by the continued shipment of nuclear fuel to
Tarapur Atomic Power Station ("Tarapur"). As noted in paragraph
3 above, members of NRDC are citizens of India and Pakistan and
have travelled and can be expected to travel to the Indian
subcontinent. Thus, they have been and may be exposed to the
hazards associated with the operation of Tarapur. Additionally,
each member and supporter of NRDC has a personal interest in
=
FORD
maintenance of a safe, healthful and productive environment.
LISAARY
-5-
Continued shipments of nuclear fuel to Tarapur create
a risk of diversion or theft of special nuclear material
and the use of such material for destructive purposes. Further,
the use of such fuel in Tarapur carries with it the threat of
major radioactivity releases resulting from accident or sabotage.
The danger of hostilities with Pakistan, China or other nations,
moreover, creates that possibility that Tarapur may be the object
of armed attack or that India will utilize nuclear weapons,
employing material derived from Tarapur, to wage such a conflict,
with widespread destructive consequences. The extent of damage
which could occur, should these risks or threats be realized,
cannot be bounded by national frontiers and may certainly not be
limited to the Indian subcontinent. Indeed, the use of nuclear
weapons on the Indian subcontinent could have far reaching
consequences for international stability and world order as
well as the common defense and security of the United States,
while terrorist action using stolen plutonium in explosive or
dispersal devices could be directed against transportation and
other public facilities virtually anywhere in the world, includ-
ing the United States. The interests of NRDC, and the interests
of its members and supporters in the environment in which they
live and work, are thus directly threatened and would be
=
FORD
GERALD
adversely affected and injured by the granting of the pend-
ing application.
g Ant
J. GUSTAVE SPETH
Subscribed and sworn to before me
this lst day of March , 1976
Jeyoca Notary a Public Truge
My Commission Expires March 31 1980
GERALD R FORD 1
Appendix 2
Before the
UNITED STATES
NUCLEAR REGULATORY COMMISSION
Washington, D.C. 20555
In the Matter of the Application
)
of Edlow International Company,
)
as Agent for the Government of
)
Docket No. XSNM-845
India, to Export Special Nuclear
)
Material
)
AFFIDAVIT OF CHARLES CLUSEN
IN SUPPORT OF THE PETITION
OF THE SIERRA CLUB
FOR LEAVE TO INTERVENE
CITY OF WASHINGTON
)
DISTRICT OF COLUMBIA
)
SS:
CHARLES CLUSEN, being first duly sworn, deposes and says:
1. I am the Washington Representative of the Sierra
Club, with offices at 324 C Street, S.E., Washington, D.C. 20003.
As such, I am fully familiar with the organization, membership,
purposes and policies of the Sierra Club. I make this affidavit
in support of the Sierra Club's petition for leave to intervene
in the above-captioned proceeding.
2. The Sierra Club is a non-profit organization, incorpor-
ated in 1890 under the laws of the State of California, with
its headquarters and principal place of business at 530 Bush
Street, San Francisco, California 94104, an office in Washington,
D.C. and an office of international environmental affairs in
New York, New York. The Sierra Club is a conservation organiza-
tion which has sought to enlist public cooperation in the pro-
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tection of the natural environment and its resources, to provide
the public with information relevant to environmental issues,
and to stimulate informed public discussion with respect to
such issues. The stated corporate purposes of the Sierra Club
are:
"To protect and conserve the natural resources
of the Sierra Nevada, the United States and
the World; to undertake and publish scientific
and educational studies concerning all aspects
of man's environment and the natural eco-systems
of the World; and to educate the people of the
United States and the World to the need to
preserve and restore the quality of that environ-
ment and the integrity of those ecosystems."
3. The Sierra Club has a membership of approximately 156,000
persons throughout the world. Such membership comprises persons resid-
ing in the United States and 100 foreign countries, including India.
4. The Sierra Club has organized and intends to continue
to organize tours for its members to places of environmental,
historical and cultural significance on the Indian subcontinent.
Since 1970, the Sierra Club has organized approximately 20 such
trips and more than 250 persons have participated in them.
5:
As an integral part of its effort to protect the
natural and human environment, the Sierra Club has devoted special
attention to the consequences of producing electrical energy in
general and to the problems of nuclear power, in particular.
The Sierra Club has sponsored conferences and meetings for the
purposes of discussing energy policy, and has published books,
pamphlets and articles thereon, including, e.g., the following.,FORD
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Books
"Towards an Energy Policy" ed., Keith Roberts (1973)
"Energy", John Holdren and Philip Herrera (1971)
Pamphlets
"Energy and the Sierra Club" (June 1975)
"The Sierra Club and Nuclear Power" (July 1975)
Articles
"Stop, Wait, Look and Listen," Roger Olmsted and
Steve Whitney, Sierra Club Bulletin (April 1975)
6. The Sierra Club has further manifested interest and
concern in international environmental problems. Its Office of
International Affairs publishes an International Report which is
distributed to environmentalists around the world, and has parti-
cipated in international conferences, and has joined in panels and
seminars on matters of international concern. The Sierra Club has
two Chapters outside the United States, and its International
Committee has appointed six country representatives outside the
United States in order to "provide as communications and represen-
tation liaison for the Club in a given country."
7. In the pursuit of its objectives, the Sierra Club has
participated in various court and administrative proceedings
involving the licensing and construction of nuclear power plants.
It was, for example, a party to the landmark decision of Calvert
Cliffs' Coordinating Committee, Inc. V. Atomic Energy Commission,
=
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LIBRARY
449 F.2d 1109 (D.C. Cir. 1971), and most recently has actively
participated as an intervenor in licensing proceedings before
the Nuclear Regulatory Commission involving the Clinch River
Breeder Reactor (Docket No. 50-537).
8. In particular, as regards the export of nuclear
equipments, fuel and technology, the Sierra Club was a plaintiff
in the lawsuit against the Atomic Energy Commission, the Depart-
ment of State and the Export-Import Bank of the United States
seeking preparation of an environmental impact statement on U.S.
nuclear power export activities (Sierra Club, et al. V. Energy
Research and Development Administration, et al., D.D.C. Civil
Action No. 1867-73), and it has played an active and vigorous
role in the administrative review of the impact statement result-
ing from such suit, commenting extensively at each opportunity
for public input in the review process. The Sierra Club has
also commented on the international aspects of domestic waste
management and enrichment proposals in the context of NEPA
reviews of such proposals, and it has testified before Congres-
sional committees reviewing controls over nuclear exports
9. The Sierra Club believes that nuclear exports should
occur only under such conditions as are sufficient to protect the
environment and the health and safety of the public, and eliminate
or meaningfully reduce potential risks of diversion, theft and
sabotage. Insofar as the pending nuclear fuel shipment to
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Tarapur is concerned, such conditions do not now exist. Thus,
a decision at this time to grant the pending application will
adversely affect its interests, and the interests of its members,
in the adoption of sound nuclear power export policy.
10. The Sierra Club, in addition to its institutional
interests, has a further interest in this proceeding to protect
the health and safety of its members and other similarly situated
from the risks occasioned by the continued shipment of nuclear
fuel to Tarapur Atomic Power Station ("Tarapur"). As noted in
paragraph 4 above, members of the Sierra Club reside in and may
travel to India on Club-organized tours. Thus, they may be exposed
to hazards associated with the operation of Tarapur. Additionally,
each member of the Sierra Club has a personal interest in maintenance
of a safe, healthful and productive environment. Continued
shipments of nuclear fuel to Tarapur create a risk of diversion
or theft of special nuclear material and the use of such material
for destructive purposes. Further, the use of such fuel in
Tarapur carries with it the threat of major radioactivity
releases resulting from accident or sabotage. The danger of
hostilities with Pakistan, China or other nations, moreover,
creates that possibility that Tarapur may be the object of
armed attack or that India will utilize nuclear weapons employ
ing material derived from Tarapur, to wage such a conflict, wit-
widespread destructive consequences. The extent of damage which
is
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could occur, should these risks or threats be realized, cannot
be bounded by national frontiers and may certainly not be
limited to the Indian subcontinent. Indeed, the use of nuclear
weapons on the Indian subcontinent could have far reaching
consequences for international stability and world order, as
well as for the common defense and security of the United States,
while terrorist action using stolen plutonium in explosive or
dispersal devices could be directed against transportation and
other public facilities virtually anywhere in the world, including
the United States. The interests of the Sierra Club's members
in the environment in which they live and work are thus directly
threatened and would be adversely affected and injured by the
granting of the pending application.
CHARLES CLUSEN
Subscribed and sworn to before me
this 15 day of 1976
Jay Notary a Public Truky march,
my Commission expires 2/31/80
i
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Appendix J
Before the
UNITED STATES
NUCLEAR REGULATORY COMMISSION
Washington, D.C. 20555
In the Matter of the Application
)
of Edlow International Company,
)
Docket No. XSNM-845
as Agent for the Government of
)
India, to Export Special Nuclear
)
Material
)
AFFIDAVIT OF DANIEL F. FORD
IN SUPPORT OF THE PETITION
OF THE UNION OF CONCERNED SCIENTISTS
FOR LEAVE TO INTERVENE
CITY OF WASHINGTON
)
DISTRICT OF COLUMBIA
)
SS:
DANIEL F. FORD, being first duly sworn, deposes and says:
1. I am Executive Director of the Union of Concerned
Scientists ("UCS"), with offices at 1208 Massachusetts Avenue,
Cambridge, Massachusetts 02138. As such, I am fully familiar
with the organization, purposes and policies of UCS. I make
this affidavit in support of USC's petition for leave to inter-
vene in the above-captioned proceeding.
2. UCS is a non-profit corporation, organized and exist-
ing under the laws of the District of Columbia, with its head-
quarters and principal place of business at 1208 Massachusetts
Avenue, Cambridge, Massachusetts 02138 and an office in
Washington, D.C. It is a charitable organization exempt from
taxation under Section 501 (c) (3) of the Internal Revenue Code.
3. UCS was formed as an informal faculty group at the
Massachusetts Institute of Technology in 1969. It is a coalition
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of scientists, engineers and other professionals concerned
about the impact of advanced technology on society. Based upon
technical research performed by faculty members for a number of
colleges and universities who devote their time in the public
interest, it seeks to disseminate its independent studies to
decisionmakers, the national and local media, other scientists
and the general public. Its research has been conducted on a
wide range of questions relating to the strategic arms race, air
and water pollution, pesticide use, liquified natural gas storage
and transport, nuclear power plant safety, radioactive waste
disposal options, and energy policy alternatives.
4. UCS maintains a Technical Advisory Committee, consist-
ing of a number of distinguished academicians, to advise it on
technical and public policy questions. Current members of the
Technical Advisory Committee are:
Ann P. Carter,
Professor of Economics, Brandeis University
Oliver Cope,
Professor of Surgery Emeritus,
Harvard Medical School
Senior Consultant
Massachusetts General Hospital
Stanley Dawson,
Assistant Professor of Environmental Health
Engineering, Graduate School of Public Health
Harvard University
John D. Edsall,
Professor of Biology, Harvard University
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James A. Fay,
Professor of Mechanical Engineering, M.I.T.,
Chairman, Massachusetts Port Authority
Bernard T. Feld,
Professor of Physics, M.I.T.
Lee Grodzins,
Professor of Physics, M.I.T.
Maurice S. Fox,
Professor of Biology, M.I.T.
Thomas C. Hollocher,
Associate Professor of Biochemistry
Brandeis Uriversity
Jerome Y. Lettvin,
Professor of Biology and Electrical
Engineering, M.I.T.
Philip Morrison,
Institute Professor, M.I.T.
5. UCS has taken a major interest in the U.S. nuclear
power program. It has published technical studies on nuclear
power and has participated on its own behalf and on behalf of
citizens' groups in a number of administrative proceedings before
the Nuclear Regulatory Commission and its predecessor, the Atomic
Energy Commission. In particular, UCS has been a party to the
following Atomic Energy Commission proceedings:
(a) In the matter of Boston Edison Company, Pilgrim
Nuclear Power Station Unit; and
(b) In the matter of Interim Acceptance Criteria for
Emergency Core-Cooling Systems for Light-Water-Cooled Nuclear
Power Reactors, Docket RM50-1.
&
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LISSABA
6. As regards the export of nuclear equipment, technology
and fuels, UCS has undertaken independent technical studies of
the problems associated with such exports, and it has recently
published analyses of related issues in its book, The Nuclear
Fuel Cycle (MIT Press 1975). UCS further sponsored the
Declaration by Members of the American Technical Community,
signed as of August 6, 1975, by 2,500 scientists and engineers,
which urges "the nation to suspend its program of exporting
nuclear plants to other countries pending resolution of the
national security questions associated with the use by these
countries of the by-product plutonium from United States nuclear
reactors." Given, in addition, current uncertainties with regard
to reactor safety and radioactive waste management, UCS believes
that a decision at this time to grant the pending application
would be unwise. Such a decision would adversely affect its
interests in promoting and ensuring the rational and safe use
of modern technology and the development of sound energy policies.
DANIEL F. FORD
Subscribed and sworn to before
me this 27 day of February, 1976
Phylli Notary L Lander Public
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My commission expires January 31, 1978.
LIBRARY
Appendix 4
Before the
UNITED STATES
NUCLEAR REGULATORY COMMISSION
Washington, D.C. 20555
In the Matter of the Application
)
of Edlow International Company,
)
Docket No. XSNM-845
as Agent for the Government of
)
India, to Export Special Nuclear
)
Material
)
)
AFFIDAVIT OF J. GUSTAVE SPETH
IDENTIFYING SPECIFIC CONTENTIONS AND BASES
CITY OF WASHINGTON
)
DISTRICT OF COLUMBIA
)
SS:
J. GUSTAVE SPETH, being first duly sworn, deposes and
says:
1. I am an attorney on the staff of Petitioner, Natural
Resources Defense Council, Inc. ("NRDC"), with an office at
917 15th Street, N.W., Washington, D.C. 20005. I am a member
of the Bar of the Court of Appeals of the District of Columbia.
I have consulted with members of NRDC's staff and knowledgeable
experts concerning the matters contained in this affidavit,
which I make in accordance with 10 C.F.R. $2.714 (a), to set
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forth the specific contentions, and the bases therefor, which
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the Petitioners for intervention seek to raise herein.
-2-
Procedural Objections of the Granting
of the Pending Application
2. Petitioners submit that the Nuclear Regulatory Com-
mission (the "Commission") cannot make the determination required
by law for the issuance of a license for the export of special
nuclear material for use in the Tarapur Atomic Power Station
("Tarapur"), India, and that the granting of the pending ap-
plication for such export would therefore be unlawful under
the Atomic Energy Act of 1954, 42 U.S.C. §§2011 et seq. (the
"Atomic Energy Act") for the following procedural reasons:
(a) There has been no public notice, by publication
in the Federal Register or otherwise, of the receipt and consid-
eration of the pending application. Interested members of the
public have thus been deprived of information necessary for a
timely evaluation of such application, and the opportunity for
intervention and the presentation of opposing views has been
severely and unwarrantedly abridged. The absence of public
notice, moreover, has necessarily limited the Commission's
opportunity to receive and hear potentially significant, adverse
information being on the decision to grant or deny the pending
application.
(b) The Commission is not applying criteria in its evaluation
of the pending application which define more precisely the general,
statutory standards which must be met if such application is to be
LIBRARY
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granted. The absence of further definition of the standards "not
inimical to the common defense and security" and "consistent with
the health and safety of the public" leave the Commission with no
meaningful guidelines to follow in its consideration of the pend-
ing application and disables the Commission from making detailed
and informed judgments consistent with the purpose and require-
ments of the Atomic Energy Act.
(c) The Commission has not consulted individually with
Executive Branch agencies having relevant expertise as to whether
the granting of the pending application would be "inimical to
or constitute an unreasonable risk to the common defense and
security," nor has it consulted with Executive Branch agencies
having relevant expertise as to the health and safety risks posed
by such application. The Commission, therefore, is not in a
position independently to exercise its licensing judgment, under
the Atomic Energy Act, with all relevant facts and information in
its possession.
(d) Even though the Agreement for Cooperation Between the
Government of the United States and the Government of India Con-
cerning the Civil Uses of Atomic Energy (the "Agreement for
Cooperation") 1% provides in Article I. for exchange of unclassified
1/ Done at Washington, August 8, 1963; entered into force
October 25, 1963, T.I.A.S. No: 5446.
/
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AUGRARY
information with respect to problems of health and safety at
Tarapur, the Commission has made no independent analysis of and
no findings regarding health and safety risks in connection with
the pending application. Significant health and safety risks
may attend the shipment of special nuclear material to Tarapur.
These result from leakage of radioactivity during normal operations,
contamination of the surrounding environment and population, in-
adequate personnel training, and difficulties in maintenance and
repair. Further, serious health and safety consequences may fol-
low from acts of sabotage, terrorism or theft directed against
Tarapur and related facilities. Continued shipments of nuclear
fuel to Tarapur also increase the threat of a major nuclear ac-
cident, which would have serious repercussions not just for the
health and safety of affected populations, but for United States'
relations with India and its other trading partners.
(e) The Commission has made no independent analysis of and
no findings regarding the risks associated with Article VI (c)
of the Agreement for Cooperation which permits the Government of
India to remoye from the scope of such Agreement quantities of
special nuclear material provided that it places agreed equivalent
quantities of the same type of special nuclear material under the
scope of such Agreement. Assurances by the Government of India
that "special nuclear material that has been or is hereafter made
available for, or used, or produced at the Tarapur Atomic
LIBRARY GERALD
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Station located at Tarapur will be devoted exclusively to the
needs of that Station.
If
may not override such provision.
Further, restrictions on transfer of special nuclear material
contained in Articles II (f) and VII (A) (2) of the Agreement for
Cooperation may not apply to exchanged special nuclear material.
Article VI (C) may thus permit India to substitute fuel from another
source for an identical amount of U.S.-supplied fuel, and then
either transfer such material to a third country outside of any
safeguards or utilize plutonium separated from the U.S.-supplied
fuel for an explosive device, thus circumventing restrictions
under the Agreement on such actions.
(f) The Commission has made no independent analysis of and
no findings regarding the risks associated with the various pro-
visions of the Agreement for Cooperation which provide for sub-
sequent United States approval of certain actions by the Indian
government, e.g., fuel reprocessing (Article II (E) ) transfer to
third parties (Article II(F)). To the extent that such approvals
are solely within the discretion of Executive Branch agencies
and there is no Commission review thereof, it may not be able to
be determined that safeguards conditions will be adequately main-
tained.
(g) The Commission has made no independent analysis of and
no findings regarding the adequacy and effectiveness of existing
safeguards applicable to special nuclear materials shipped. too
BERALD FORD LIBRARY
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Tarapur. In accordance with the terms of Article VIII of the
Agreement for Cooperation, and the terms of the Agreement Between
the International Atomic Energy Agency (the "IAEA"), the Govern-
ment of India and the Government of the United States of America
Relating to Safeguards Provisions. 2% implementation of safe-
guards over Tarapur is the responsibility of the IAEA, and United
States bilateral rights have been suspended. Approximately 1,000
pounds of plutonium, enough fissionable material to fabricate 100
atomic bombs, have accumulated to date at Tarapur and are under
Indian guard and control, subject to inspections and measurements
by the IAEA. In such circumstances, before yet further special
nuclear material is committed to Tarapur, the Commission must assess
such issues as limitations (in both time and space) on the access
of inspections to facilities, deficiencies in the technology of
containment and surveillance measures (locks, seals, guards, in-
trusion detectors, etc.), potential inaccuracies in measurement
devices, lack of IAEA authority over physical security, and ab-
sence of IAEA or other international sanctions in cases of proven
diversion or supply of fissionable materials to another country
for developing nuclear explosive devices. However, while the
IAEA has entered into "Subsidiary Arrangements" with India which
detail the specific safeguards applicable to Tarapur, the particu-
lars of the Subsidiary Arrangements have not been made available
to the Commission in the licensing process. Further, the Commission
does not have access to "Safeguards Confidential Information"
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LIDNARY
2/ Signed at Vienna January 27, 1971; entered into force January 27,
1971, T.I.A.S. No. 7049,
cerning the experience of the IAEA in applying safeguards to
Tarapur. The Commission thus has not only not carried out the
necessary review but does not even have the necessary information
to properly evaluate the risks associated with further nuclear
fuel shipments to Tarapur.
(h) The Commission has made no independent analysis of and
no findings as to whether and under which circumstances, if any,
the United States could retrieve special nuclear material from
Tarapur in the event that India took actions inconsistent with
its Agreement for Cooperation, license conditions, or other as-
surances to the United States. As noted in paragraph 2(g), supra,
more than 1,000 pounds of plutonium have accumulated at Tarapur.
If retrieval of such material were not possible should India deter-
mine to repudiate its agreements and assurances and/or to utilize
some part of it to fabricate an explosive device, then yet further
shipments of special nuclear material to Tarapur may exacerbate
the risks associated with its operation.
(i) The Commission has either obtained back-up material and
other data supporting the general expression of the Executive
Branch position, prepared in accordance with Executive Order 11902,
41 Fed. Reg. 4877 (February 3, 1976), concerning the pending ap-
plication, nor made an independent analysis of and findings with
regard thereto. The Commission thus is making its licensing de-
cision with regard to the pending application on the basis of the
opinions of other agencies, not the facts supporting such opinions.
(j) The Commission has neither obtained safeguards information
nor made an analysis of and findings with regard to facilit
thereto FORD LIBRASE
other than Tarapur within India, the safeguards applicable
-8-
or the relationship of those facilities to Tarapur. India, for
example, has an unsafeguarded reprocessing facility at Trombay,
with a capacity of 350 kilograms per day, as well as a planned
reprocessing facility at Tarapur itself, with a capacity of 100
metric tons per year. Information concerning such facilities
is relevant to the issue of whether, under what circumstances,
and in what amounts India could separate plutonium from spent
fuel should special nuclear material be diverted from Tarapur.
Essential information, in other words, pertaining to the
ability of India to circumvent safeguards and develop nuclear
weapons is not before the Commission.
(k) The Commission has neither obtained physical security
information nor made an analysis of and findings with regard to physica
security for the handling of special nuclear material intended for
Tarapur. In particular, raw files of physical security inspections
carried out by the Energy Research and Development Administration
have not been made available to the Commission. The Commission con-
sequently cannot assess what protection Tarapur may have against
acts of sabotage; terrorism theft directed against such facility
nor can it assess the possibility of acts of sabotage or terrorism
causing core disruptive accidents or severe reactor accidents and
the probability of such acts occurring Further, the Commission
has no information concerning physical security requirements ap-
plicable to the special nuclear material if and when it is removed
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from Tarapur, reprocessed, and recycled. The Commission thus is
in the position of authorizing the supply of fuel in the absence
of any assurance that the United States will be able to reach a
future agreement with India establishing physical security standards
for the handling of spent fuel.
(1) The Commission has neither obtained information nor made
an analysis of and findings with regard to India's plans for re-
processing and waste management of special nuclear material shipped
to Tarapur, and the materials accounting safeguards and physical
security standards applicable thereto. Because the Agreement for
Cooperation would permit India to reprocess its own materials, which
are not safeguarded under such Agreement, in the same facility in
which U.S. -supplied special nuclear material might also be reproces-
sed, the workings of any materials accountability and safeguards
system may be appreciably complicated. In the absence of detailed
information and analysis, the Commission cannot assess the safeguards
risks at the "back end" of the fuel cycle associated with the ship-
ment of nuclear fuel to Tarapur.
(m) The Commission has neither obtained detailed information
nor made an analysis of and findings with regard to such factors as
India weapons development capability and plans and its external
and internal political situation as they relate to the risks that
special nuclear material supplied to Tarapur may be diverted and
used for unlawful purposes, e.g., fabrication of nuclear weapons.
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The Commission thus cannot adequately assess safeguards risks
associated with the shipment of nuclear fuel to Tarapur.
NEPA Objections to the Granting of
the Pending Application
3. Petitioners submit that the granting of the pending ap-
plication for export of special nuclear material to Tarapur would
be unlawful under the National Environmental Policy Act of 1969,
42 U.S.C. SS4321 et seq. ("NEPA"). No environmental impact state-
ment has been prepared, pursuant to Section 102 (2) (C) of NEPA,
42 U.S.C. SS4332 (2) (C) and the Commission's implementing regulations.
Nonetheless, the issuance of a license for the export of significant
quantities of nuclear fuel to Tarapur is a "major federal action
significantly affecting the quality of the human environment"
within the meaning of NEPA, and no license can be issued until
it has been established, after preparation, circulation for comment
and consideration of a detailed environmental impact statement,
that such action is appropriate thereunder.
Substantive Objections to the Granting
of the Pending Application
4. Petitioners submit that the Commission cannot lawfully
determine that granting of the pending application would not be
inimical or constitute an unreasonable risk to the common defense
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and security and the interests of the United States within the
meaning of the Atomic Energy Act and the Commission's imple-
menting regulations, given the risks associated with India's
position on non-proliferation and its current international re-
lations:
(a) India is not a party to the Treaty on the Non-Pro-
liferation of Nuclear Weapons (the "NPT"). 3/ Thus, it has not
committed itself internationally to forswear the development of
nuclear weapons, and it has proceeded to develop and detonate a
nuclear explosive device fabricated from unsafeguarded nuclear
fuel irradiated in a reactor supplied for peaceful purposes only.
The continued shipment of special nuclear materials to Tarapur
frustrates and impairs the non-proliferation policy of the United
States as embodied in the NPT and discriminates against those
countries which have undertaken NPT obligations. Further, it
effectively sanctions India's refusal to accept those obligations,
and can only have the effect of encouraging other countries to
ignore prohibitions against nuclear weapons development. Such
proliferation is plainly inconsistent with the purposes and
requirements of the Atomic Energy Act.
3/ Done at Washington, London and Moscow, July 1, 1968; entered
into force for the United States, March 5, 1970, 21 U.S.T. 483,
T.I.A.S. No. 6839.
GERALD R: FORD LIBRARY
(b) India has, within the past five years, engaged in armed
hostilities against Pakistan, and its relations with Pakistan,
China, and other neighbors are a subject of continuing friction
and rivalry. Given the current political situation, and, in
particular, the potential instability of the area, there is a
significant possibility of international conflict which would dis-
rupt safeguards agreements and threaten the security of nuclear
materials and facilities. There is thus inadequate assurance
that safeguards over special nuclear material at Tarapur can or
will be maintained, and accordingly, further transfer of fuel can-
not be deemed consistent with the common defense and security and
interests of the United States.
5. Petitioners submit that the Commission cannot lawfully
determine that granting the pending application would not be
inimical to or constitute an unreasonable risk to the common de-
fense and security and the interests of the United States within
the meaning of the Atomic Energy Act and the Commission's imple-
menting regulations, because of the failure of the United States
to impose the following conditions, singly and in combination
on further transfers of special nuclear material to Tarapur:
(a) The United States has not required India absolutely
to refrain from the development of further nuclear explosive de-
vices. Such failure, whatever the safeguards applicable to U.S.-
supplied special nuclear material and whatever conditions of export
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suppliers may agree upon, permits India to continue on its program
of developing nuclear explosives, to the detriment of the non-prolifer-
ation policy of the U.S. as embodied in the NPT. Peaceful nuclear
explosives and nuclear weapons cannot be differentiated; to allow
India to continue to develop and test "peaceful nuclear explosives"
is thus incompatible with effective, international nuclear arms
control.
(b) The United States has not required India to permit safe-
guards on all its nuclear facilities. Because India has not ad-
hered to the NPT and because the Agreement for Cooperation contains
no provision to the contrary, such failure allows India to maintain
nuclear facilities which are either only partially safeguarded
or which are totally free from international and United States safe-
guards against their use for the production of nuclear weaponry.
It thus permits India to obtain the benefits of U.S. -supplied special
nuclear material, without assuming the obligations of those countries
which have adhered to the NPT. The effect of the failure to impose
such a requirement is that India is free to use unsafeguarded
facilities to develop nuclear weapons. Safeguards, even when
applied to all the special nuclear material utilized at Tarapur,
are not enough to ensure that non-peacéful nuclear activities
are not carried on in India so long as fissionable material from
unsafeguarded sources remains free of control and so long as un-
safeguarded facilities are available to process special nuclear
material diverted from Tarapur.
LIBRARY GERALD ? FORD
(c) The United States has not required India to refrain
from developing national enrichment and reprocessing facilities.
India, as noted in paragraph 2(j), supra, already has one oper-
ational reprocessing facility and one under construction. There
are, moreover, no restrictions on development of national enrich-
ment capability. The current absence of restrictions has
already contributed to the purchase by Pakistan of a reprocessing
facility, thus increasing the risk of a nuclear arms race on the
Indian subcontinent. Enrichment and reprocessing are from the
standpoint of safeguards the most critical elements of the nuclear
fuel cycle. In order to reduce or eliminate the risks associated
with national fuel centers, the NPT Review Conference, in its
Final Declaration of May 30, 1975, promoted the study and encourage-
ment of regional or multinational nuclear fuel cycle centers. 4 /
Secretary of State Kissinger, at the opening of the 30th Session
of the United Nations General Assembly, stressing the proliferation
dangers of national reprocessing centers, proposed "the estab-
lishment of multinational regional nuclear fuel cycle centers"
as an alternative to national facilities. 5 / To continue to
transfer special nuclear material to Tarapur while permitting
4 / "NPT Review Conference Report, " IAEA Bulletin, Vol. 17,
No 4 (August 1975) at 21-26
5 / United States Mission to the United Nations, Press Release
U.S.U.N. - 99 (75) (September 22, 1975).
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India to maintain and develop its own fuel facilities is incon-
sistent with the U.S. initiatives and creates unwarranted risks
to the common defense and security.
(d) The United States has not required India to agree, prior
to the shipment of nuclear fuel to Tarapur, to safeguards and
physical security requirements for any future reprocessing of
such fuel, should reprocessing be permitted. Thus, there is in-
adequate assurance that the special nuclear material shipped to
Tarapur will not be used for non-peaceful purposes. Should an
agreement as to appropriate safeguards and physical security re-
quirements not be reached in the future, the fuel would still be
in India and subject to diversion or theft under inadequate safe-
guards and physical security requirements.
(e) The United States has not required India to establish any
physical security requirements applicable to the operation of
Tarapur and the protection of special nuclear material utilized at
such facility. There are thus insufficient guarantees against
acts of sabotage, terrorism or theft. Should such acts occur,
even though nominally directed only against the Indian Government,
they may directly affect the defense and security interests of
the United States.
(f) The United States has not required India to accept
bilateral safeguards at Tarapur, additional to those implemented
by the IAEA, at least as effective as domestic U.S. safeguards.
Such failure creates an unwarranted risk of diversion. The United
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States has developed domestic safeguards systems which may be more
effective in terms of detection, containment and surveillance than
those currently employed by the IAEA. Further, access at all times
and in all places for physical inspections would provide greater
assurance of protection than current, limited IAEA inspection
rights. The absence of such additional safeguards increases the
possibility of a successful diversion and the ultimate use of
special nuclear material shipped to Tarapur for non-peaceful purposes.
(g) The United States has not required India to agree to
U.S. control over the disposition of plutonium produced at Tarapur.
The proposed transfer under the pending application is pursuant to
a contract of sale, and India, not the United States, has title
to the special nuclear material. There are no conditions in the
Agreement for Cooperation or other instruments which call for the
return of reactor-produced plutonium to the United States, or which
require specific disposition abroad (outside of India) or which
otherwise give the United States authority to obtain access to
and control over such material, e.g., as in a lease rather than
sale transaction. Thus, spent fuel containing plutonium has been
and will continue to be stockpiled in India, creating the risk of
and opportunity for diversion. Should India repudiate its Agree-
ment for Cooperation or other assurances with regard to peaceful
uses, the absence of such a requirement would leave India with the
wherewithal to fabricate dozens of nuclear devices and thus is
plainly inconsistent with the defense and security interests of
the United States.
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6. Petitioners submit that the Commission cannot lawfully de-
termine that granting the pending application would not be inimical
or constitute an unreasonable risk to the health and safety of the
public and the interests of the United States within the meaning
of the Atomic Energy Act and the Commisions's implementing regu-
lations, because of the failure of the United States to impose
the following conditions, singly and in combination, on further
transfers of special nuclear material to Tarapur:
(a) The United States has not required India to meet the
conditions specified in paragraph 5 above. Such failure poses risks
not only to the common defense and security, but, should nuclear
devices be used for destructive purposes, to the health and safety
of the public.
(b) The United States has not required India to establish,
maintain, and enforce an effective program for the application of
adequate health and safety standards to the operation of Tarapur,
nor has it determined that such health and safety standards as
the Indian Government may apply to Tarapur are adequate to protect
potentially affected persons. Such failure unjustifiably creates
health and safety risks, inconsistent with the purposes of. the
Atomic Energy Act, which may extend beyond the Indian supcontinent
(c) The United States has not required India to establish
and maintain adequate repair and maintenance capability, utilizing
qualified personnel, at Tarapur, nor has it determined that such
repair and maintenance capability as now exists is adequate to en-
sure safe operation and maintenance of nuclear activities.
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in maintenance and repair, as well as staffing, may substantially
aggravate the risks of both operational releases and major accidents.
In the absence of requirements in this regard, there is insufficient
assurance that the health and safety of the public will be properly
protected.
7. Petitioners submit that granting the pending application
would be inconsistent with and in violation of the United States'
obligations under the NPT:
(a) In light of severe proliferation risks posed by the pro-
posed transfer of special nuclear material to Tarapur, as set forth
in paragraph 4 above, and in light of the failure of the United
States to impose conditions sufficient to protect against risks
of diversion, theft and sabotage, as set forth in paragraph 5
above, granting the pending application would violate Article I
of the NPT which prohibits the United States from transferring
"nuclear weapons or other nuclear explosive devices or control over
such weapons or explosive devices directly, or indirectly" to any
nation and from "assist[ing]
any non-nuclear weapon State
to manufacture or otherwise acquire nuclear weapons or other nuclear
explosive devices, or control over such weapons or explosive de
vices.
и
(b) light of the lure of the United States to require
India to permit safeguards on all its nuclear facilities, as set
forth in paragraph 5 (b) above, granting the pending application
:
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would violate Articles III (1) and III (2) of the NPT which require
that transfer of special nuclear material to a non-weapons State
be subject to a condition that safeguards required thereunder "be
applied on all sources or special fissionable material in all peace-
ful nuclear activities within the territory of such State, under
its jurisdiction, or carried out under its control anywhere"
(emphasis added).
I Guiten Spith
J. Gustave Speth
Subscribed and sworn to before me
this 1st day of March, 1976
Notary
Jun Public
Commission Expires Merch 31, 1980
SEARLE FORD LIBRARY
Before the
UNITED STATES
NUCLEAR REGULATORY COMMISSION
Washington, D.C. 20555
In the Matter of the Application
)
of Edlow International Company,
)
Docket No. XSNM-845
as Agent for the Government of
)
India, to Export Special Nuclear
)
Material
)
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing "Petition of
the Natural Resources Defense Council, Inc., the Sierra Club and
the Union of Concerned Scientists for Leave to Intervene," together
with the two affidavits of J. Gustave Speth and the affidavits of
Charles Clusen and Daniel F. Ford, annexed thereto as Appendices
1 through 4, was delivered by hand this 2nd day of March, 1976,
to the following:
Howard Shapar, Esquire
Peter Strauss, Esquire
Office of the Executive
Office of the General
Legal Director
Counsel
U.S. Nuclear Regulatory Commission
U.S. Nuclear Regulatory
Washington, D. C. 20555
Commission
Washington, D.C. 20555
Chase Stephens, Chief
Diane Wright
Docketing and Service Section
Assistant to the Vice
Office of the Secretary of the
President
Commission
Edlow International Company
U.S. Nuclear Regulatory Commission
1100 17th Strect, N.W.
Washington, D.C. 20555
Washington, D.C 20036
ELDON V.C. GREENBERG
GERABOR
FORD
ABRAR
Steachled
To Archive: 0/2/76
EXECUTIVE ORDER
- 11902
-
PROCEDURES FOR AN EXPORT LICENSING POLICY
AS TO NUCLEAR MATERIALS AND EQUIPMENT
The Energy Reorganization Act of 1974 transferred
to the United States Nuclear Regulatory Commission the
licensing and related regulatory functions previously
exercised by the Atomic Energy Commission under the Atomic
Energy Act of 1954, as amended.
The exercise of discretion and control over nuclear
exports within the limits of law concerns the authority and
responsibility of the President with respect to the conduct
of foreign policy and the ensuring of the common defense
and security.
It is essential that the Executive branch inform
the Nuclear Regulatory Commission of its views before the
Commission issues or denies a license, or grants an
exemption.
NOW, THEREFORE, by virtue of the authority vested
in me by the Constitution and statutes of the United States
of America, including the Atomic Energy Act of 1954, as
amended (42 U.S.C. 2011 et seq.), and as President of the
United States of America, it is hereby ordered as follows:
Section 1. (a) The Secretary of State is designated
to receive from the Nuclear Regulatory Commission a copy of
each export license application, each proposal by the Nuclear
Regulatory Commission to issue a general license for export,
and each proposal by the Nuclear Regulatory Commission for
exemption from the requirement for a license, which may
involve a determination, pursuant to the Atomic Energy Act
of 1954, as amended, that the issuance of the license or
GERALD ? FORD
2
exemption from the requirement for a license will, or will
not, be inimical to or constitute an unreasonable risk to
the common defense and security.
(b) The Secretary of State shall ensure that a copy
of each such application, proposed general license, or
proposed exemption is received by the Secretary of
Defense, the Secretary of Commerce, the Administrator of
the United States Energy Research and Development Adminis-
tration, hereinafter referred to as the Administrator, the
Director of the Arms Control and Disarmament Agency,
hereinafter referred to as the Director, and the head
of any other department or agency which may have an
interest therein, in order to afford them the opportunity
to express their views, if any, on whether the license
should be issued or the exemption granted.
Sec. 2. Within thirty days of receipt of a copy
of a license application, proposed general license, or
proposed exemption, the Secretary of Defense, the Secretary
of Commerce, the Administrator, the Director, and the head
of any other agency or department to which such copy has
been transmitted, shall each transmit to the Secretary of
State his views, if any, on whether and under what conditions
the license should be issued or the exemption granted.
Sec. 3. The Secretary of State shall, after the
provisions of section 2 of this order have been complied
with, transmit to the Secretary of Defense, the Secretary
of Commerce, the Administrator, the Director, and the head
of any other department or agency who has expressed his
views thereon, a proposed position of the Executive branch
as to whether the license should be issued or the exemption
granted, including a proposed judgment as to whether issuance
of the license or granting of the exemption will, or will
not, be inimical to or constitute an unreasonable risk
to the common defense and security.
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Sec. 4. If the heads of departments and agencies
specified in section 2 of this order are unable to agree
upon a position for the Executive branch, the Secretary of
State shall refer the matter to the Chairman of the Under
Secretaries Committee of the National Security Council in
order to obtain a decision. In the event the Under
Secretaries Committee is unable to reach a decision, the
Chairman of that Committee shall refer the matter to the
President for his decision.
Sec. 5. The Secretary of State, after taking
the actions required by this order, shall notify the Nuclear
Regulatory Commission of the position of the Executive branch
as to whether the license should be issued or the exemption
granted, including the judgment of the Executive branch as
to whether issuance of the license or granting of the exemp-
tion will, or will not, be inimical to or constitute an
unreasonable risk to the common defense and security.
The Executive branch position shall be supported by
relevant information and documentation as appropriate to
the proceedings before the Nuclear Regulatory Commission.
Herald R. Int
THE WHITE HOUSE,
February 2, 1976.
BERALD R. SHOP