U.S. Nuclear Body Decision Stalled on Proliferation Review Proposal

Laser isotope separation equipment. The U.S. Nuclear Regulatory Commission might license the first commercial facility for enriching uranium with laser technology before responding to a petition that it mandate a proliferation assessment for every new materials-processing site application (U.S. Lawrence Livermore National Laboratory photo).
Laser isotope separation equipment. The U.S. Nuclear Regulatory Commission might license the first commercial facility for enriching uranium with laser technology before responding to a petition that it mandate a proliferation assessment for every new materials-processing site application (U.S. Lawrence Livermore National Laboratory photo).

WASHINGTON -- A Nuclear Regulatory Commission response to a proposal that the agency demand a proliferation assessment for each new materials-processing facility license application has been delayed until next fall (see GSN, Jan. 12, 2011).

A staff recommendation on the matter had been widely expected by this spring, potentially followed by a vote on the prospective rule change by the agency’s five presidentially appointed commissioners.  However, that outlook has changed.

“The staff recommendation is due to the commission in early October,” David McIntyre, an NRC spokesman, said on Wednesday. 

“Due to the large number of public comments we received on this petition, and because of the issues of common defense and security raised by the petition, the decision was made earlier this year to refer the petition to the commission for final review,” he told Global Security Newswire.  “The staff is currently preparing a paper for the commission, documenting its review of the petition.”

A resolution of the issue by majority vote of the five commissioners could then come next, but “when the commission will decide is anyone’s guess,” McIntyre said.

The October timing for the staff report is just days after the projected date by which a new GE-Hitachi facility is to receive an NRC license to use state-of-the-art laser enrichment to process uranium for powering civil nuclear reactors.  The Nuclear Regulatory Commission’s staff approval of the so-called Global Laser Enrichment license is now due on Sept. 30, a postponement from earlier expectations that it would be granted by this past January.

The possible entry of laser enrichment into the commercial market is, for some issue experts, reason No. 1 why NRC proliferation impact analyses are needed before each new license for processing sensitive materials is supplied.

Many nuclear experts have voiced concerns that laser enrichment -- which could be performed in smaller facilities and use less energy than today’s centrifuge approach -- might make any illicit facilities worldwide virtually undetectable. Enrichment can be used for processing uranium for nuclear power plants or nuclear weapons.

Until 2009, Iran successfully concealed a centrifuge plant that international watchdogs suspect has figured into the Persian Gulf nation’s alleged efforts to build an atomic arms capability, an objective that Tehran denies (see GSN, March 23).

If the United States becomes the first country to undertake laser enrichment on a commercial scale, the technique might spread worldwide and be adopted by nations seeking to hide their military-related activities, the argument goes (see GSN, July 30, 2010).

The NRC staff recommendation is expected in response to a formal November 2010 petition from the American Physical Society, which argued that the regulatory agency does not have sufficient processes in place to vet license applications for activities with significant proliferation potential.

The organization -- a 113-year-old group of U.S. physicists -- sponsored a February 2010 study group report on technical aspects for reducing the nation’s nuclear arsenal.  One finding was that “some of the new enrichment and reprocessing technologies could represent proliferation 'game changers' since they would lead to smaller, more efficient, and possibly less expensive methods for the production and use of nuclear materials that would be more difficult to detect,” according to the APS petition.

Specifically, the rule change would mandate: “Each applicant for the license of an enrichment or reprocessing facility shall include an assessment of the proliferation risks that construction and operation of the proposed facility might pose,” according to the physicists’ request.

“Such an [assessment] is consistent with the NRC requirement to evaluate whether the issuance of a license ‘would be inimical to the common defense and security or to the health and safety of the public,’” an existing agency responsibility under law, according to the APS argument.

The Nuclear Regulatory Commission received nearly 2,400 public comments on the petition, most of which were form letters. However, there were also “several dozen substantive comments from various individuals,” McIntyre said.

Almost all of the nearly 60 messages posted on the NRC website support the APS reform proposal, including one signed jointly by the top Republican and Democrat on the House Foreign Affairs Committee. 

One missive opposing the petition arrived from Janet Schlueter, an atomic industry advocate at the Nuclear Energy Institute.  She contended that “the comprehensive regulatory infrastructure in place today appropriately and adequately addresses proliferation concerns and a new regulatory requirement for applicants to conduct a nuclear proliferation assessment is unnecessary.”

The NRC staff response to the APS petition is reported this week to be in draft form.  Nuclear power insiders widely expect it to reject the physicists’ argument that the agency must commission nuclear proliferation assessments as part of its licensing process for uranium enrichment or plutonium reprocessing facilities.

McIntyre, the NRC spokesman, declined comment on the as-yet unfinished document.

“I had expected that they would issue a staff recommendation within a year” of a March 2011 deadline for public comments on the proposal, said Francis Slakey, an APS official who led the group’s petition effort.  “I’ve been told the delay has been caused by their work on Fukushima, but I’m sure they should be capable of working on more than one issue at a time,” he told GSN.

In the wake of last year’s Japanese nuclear power plant disaster, U.S. energy agencies have boosted inspections and reviewed guidelines for civil power safety (see GSN, Sept. 23, 2011).

At the same time, NRC activity on some other issues proceeds apace.  The agency’s role is to prepare policies and regulations for nuclear reactor and materials safety, oversee licensees and rule on legal matters.

The commission recently approved an environmental impact statement for the GE-Hitachi laser facility, which is to be built in Wilmington, N.C. 

The Feb. 29 statement appears to offer some hints about the basis for a potential NRC staff rejection of the proposed rule change, which if adopted would apply not just to the laser enrichment application but any new enrichment or reprocessing facility that must receive an agency license. 

The regulatory agency maintained in the document that its license review process adequately addresses the proliferation concerns associated with the proposed laser enrichment plant and that a separate assessment is unnecessary.

“Independent of this [environmental impact] review, the NRC has concluded that both nonproliferation issues and the effects of terrorism are beyond the scope” of NRC reviews required by the 1969 National Environmental Policy Act, according to the statement. 

“NRC safety regulations regarding information, physical security, and material control adequately address nonproliferation concerns as part of a comprehensive regulatory infrastructure and an integrated set of activities,” the agency said.  “These regulations and activities are directed against activities that are inimical to the public health and safety and common defense and security, including the unauthorized disclosure of information and technology and the diversion of nuclear materials.”

Some public comments about the draft version of the environmental impact statement note that the 1954 Atomic Energy Act includes a role for the Nuclear Regulatory Commission in evaluating the proliferation potential for proposed transfers abroad of sensitive U.S. materials, technologies and information, as part of a nuclear trade agreement.

A number of the comments “contend that NRC is conveying a double standard by considering national security concerns to be within the scope of the [environmental impact statement] when energy security is the issue, but not when national security concerns derive from proliferation implications,” the agency noted.

However, it responded that “while the [Atomic Energy Act] does not prescribe that NRC explicitly consider nuclear proliferation as a prerequisite to domestic licensing, the NRC's security requirements related to information and material control address nonproliferation concerns,” according to the impact statement for the GE-Hitachi plant.

“Given the NRC’s comprehensive regulatory framework, ongoing oversight, and active interagency cooperation, it is the NRC’s current view that a formal nuclear nonproliferation assessment is not necessary to ensure the protection of the common defense and security,” the document states.

Critics argue that the NRC focus on securing information and materials at a given facility is too narrow to effectively protect U.S. national security.  They say that simply by being the first nation to commercialize the laser enrichment technology, Washington will inevitably spur other capitals -- some of them with covert military motives -- to intensify their laser research and ultimately duplicate the new approach.

“If the NRC licenses a new enrichment or reprocessing technology for use in this country, that approval is likely to serve as a precedent for greater use elsewhere,” House Foreign Affairs Committee Chairman Ileana Ros-Lehtinen (R-Fla.) and Ranking Member Howard Berman (D-Calif.) argued in their March 2011 comment on the APS petition. 

“Unfortunately, although advancements in enrichment technology may have significant benefits domestically, they may also increase the risk of proliferation in other countries, especially by challenging our ability to detect the misuse of such technology for military purposes,” the lawmakers said.

The Nuclear Regulatory Commission itself has recognized the potential danger that the new technology presents.

Laser isotope separation for uranium enrichment “poses a nuclear proliferation concern,” the NRC Technical Training Center stated in a 2008 training manual, noting that “extra proliferation concerns [are] due to the small size” of laser facilities relative to their anticipated productivity.

McIntyre said he does not believe the manual’s statement on proliferation concerns “is inconsistent with anything we’ve said.”

The February environmental impact statement, though, is not the first time the agency has argued that it lacks the jurisdictional authority -- or the need -- to conduct a stand-alone nuclear proliferation assessment.

“The NRC considers a nuclear nonproliferation impact assessment to be outside the scope of the agency’s statutory responsibilities,” Michael Weber, then the director of the NRC Nuclear Material Safety and Safeguards Office, said in a March 2010 letter to nonproliferation advocate Tom Clements.  Neither the Atomic Energy Act nor the National Environmental Policy Act calls for “such an assessment in the context of domestic licensing,” he said.

One Capitol Hill source differed with that assessment of the law, saying this week that “if Congress can ask NRC to comment” on the proliferation implications of nuclear energy technology transfers overseas, “it’s tough to say NRC does not have statutory responsibility to assess these [proliferation] matters.”

Lacking permission to speak publicly, the congressional aide requested anonymity to discuss the issue.

Clements, nonproliferation policy director for the Alliance for Nuclear Accountability, on Wednesday said it remains unclear how existing NRC license-review procedures take the potential risks of technology spread into account.

“I don’t see where it’s part of the process,” he said.  “They’ve issued a final safety evaluation and that does not include proliferation.  So it appears to me that the NRC has not conducted any type of public proliferation assessment on this technology.”

Nor have other government agencies -- such as the State or Energy departments -- stepped up to fill any perceived gap in the NRC ability or authority to weigh such matters.  In the case of the laser enrichment facility license application, State would lack regulatory authority and no export permission has been requested, he noted.

“NRC could solve this problem,” Clements said.  “I think it’s incumbent on NRC to take the lead on it.”

April 5, 2012

WASHINGTON -- A Nuclear Regulatory Commission response to a proposal that the agency demand a proliferation assessment for each new materials-processing facility license application has been delayed until next fall.