UNITED STATES NUCLEAR REGULATORY COMMISSION
Washington, D.C. 20555
In the Matter of
TRANSNUCLEAR, INC.
Docket No. 11004997
(Export of 93.3% Enriched Uranium)
License No. XSNM 03012
Docket No. 11004998
TRANSNUCLEAR, INC.
License No. XSNM 03013
(Export of 93.3% Enriched Uranium)
DECLARATION OF PAUL L. LEVENTHAL
I, PAUL L. LEVENTHAL, hereby declare:
1. I am, and have been since 1981, the President of the Nuclear Control Institute ("NCI" or the "Institute"). As such, I am fully familiar with the matters set forth in this Declaration, which I make in support of NCI's Petition for Leave to Intervene and Request for Hearing in the above-captioned proceedings.
2. Before establishing the Institute in 1981, I served in the U.S. Senate in senior staff positions on the Government Operations Committee from 1972-1976 and on the Environment and Public Works Committee from 1978-1980. I had principal responsibility for conducting investigations, organizing hearings and drafting legislation that led to enactment of the Energy Reorganization Act of 1974, which reorganized the Atomic Energy Commission into separate and independent regulatory and promotional agencies, the Nuclear Regulatory Commission (the "Commission" or the "NRC") and the Energy Research and Development Administration, the predecessor of the present-day Department of Energy ("DOE"). I played a similar role with regard to enactment of the Nuclear Non-Proliferation Act of 1978 (the "NNPA"). In both cases, I concentrated on weapons-usable nuclear materials, highly-enriched uranium ("HEU") and plutonium, and on new controls aimed at improving safeguards and security on, and at limiting civilian applications of, these materials. The establishment of the NRC Office of Nuclear Materials Safeguards and Security and of the NRC's export licensing authority, as well as the panoply of enhanced interagency controls over exports, transfers and re-transfers of U.S.-origin nuclear materials, were the direct result of these efforts.
3. In 1979-1980, I was co-director of the Senate Special Investigation of the Three Mile Island Nuclear Accident and was responsible for preparing the "lessons-learned" legislation that was enacted to enhance the NRC's authority to prevent and to respond to future accidents.
4. In 1981, I founded the Institute as a non-profit research and advocacy center on nuclear proliferation problems. The Institute places particular emphasis on establishing stricter controls on and eventually eliminating civilian use of HEU and plutonium. The Institute has had the benefit of outside experts in pursuing these issues, including the late J. Carson Mark, who had served as head of the Theoretical Division of Los Alamos National Laboratory and member of the NRC's Advisory Committee on Reactor Safeguards (the "ACRS"); Theodore B. Taylor, a former designer of nuclear weapons and of the TRIGA reactor who also served as Deputy Director of the Defense Advanced Projects Agency; and two former NRC Commissioners, Victor Gilinsky and Peter Bradford.
5. NCI has long been active in efforts to reduce and/or eliminate the use of HEU in domestic and foreign civilian research and test reactors. We have worked with Members of Congress over the years to ensure that there is adequate funding for the U.S. Reduced Enrichment for Research and Test Reactors ("RERTR") program. We supported enactment of legislation barring U.S. exports of HEU to operators who refuse to convert their reactors to low-enriched uranium ("LEU"). We have testified before the ACRS and the Commission in support of the Commission's program to convert licensed domestic reactors to LEU fuel. NCI has collaborated with foreign legislators and concerned citizens to oppose HEU at European research reactors. Finally, the Institute has worked closely with DOE to reinstate its Off-Site Fuels Program (the "OSFP"), a necessary element of any U.S. policy to end foreign use of HEU.
Support for Funding the RERTR Program
6. For more than a decade, NCI has been an advocate of the RERTR program and of its contribution to nuclear non-proliferation. NCI has pressed for completion of this vital but neglected U.S. government program to replace HEU fuel and targets in research reactors with newly-developed, LEU fuel and targets that cannot be used in nuclear weapons. If fully funded, this program could put an end to exports of HEU, a nuclear weapons-usable material, and thereby eliminate trade in one of the two key ingredients for nuclear weapons.
7. NCI has worked with members of Congress to ensure funding for the conversion of research reactors to LEU fuel and for the development of new fuel for the few remaining reactors for which LEU substitute fuel has not yet been designed. We have also supported DOE's ongoing efforts to develop substitute targets and thereby make technically feasible the attainment of the RERTR objective for both targets and fuel on a universal basis. A Washington Post op-ed article by Alan Kuperman, NCI Issues Director, on September 23, 1987, helped win funding for the RERTR program in the Senate Appropriations Committee. In 1990, after the Bush Administration decided to terminate the program, NCI worked with Representative James Scheuer to restore $1.3 million for conversion of foreign research reactors. Secretary of Energy James Watkins agreed to consider restoring an additional $3 million for fuel development and to continue this type of funding through FY 1994.
8. Despite NCI's efforts, in FY 92, DOE's request for the RERTR program was for only $800,000. This reduction, if enacted, would have delayed reactor conversions for which replacement fuels already had been developed and would have ensured the continued U.S. export of 200 to 400 pounds of HEU annually --- most of it to reactors for which replacement fuels would not be developed. NCI pointed out that, for an additional $3 million a year over the next five years, the RERTR program could develop the remaining substitute LEU fuel and targets and thereby put an end to U.S. exports of bomb-grade material altogether.
9. The Institute assisted Senator Timothy Wirth in preparing an amendment to restore $500,000 for the RERTR program. The additional $500,000 raised the RERTR appropriation to $1.3 million to permit conversion to continue of all foreign research reactors for which substitute, non-weapons-usable fuel had been developed.
Testimony in Commission Rulemaking Proceedings
10. NCI has offered expert testimony to the Commission on a number of occasions in support of the RERTR program and its objectives. On January 27, 1984, I testified on behalf of NCI before the Commission on the need to convert domestic research reactors from HEU to LEU fuels. I also testified on this issue before the ACRS Subcommittee on Safeguards and Security on June 12, 1984. I pointed out to the Commission that 137 research and test reactors in 34 countries used more than 1,000 kilograms annually of HEU fuel, of which 99 per cent was provided by the United States. At any one time, I said, there were more than 4,100 kilograms of U-235 in circulation---enough for 205 atomic bombs. This problem, I noted, "stands out as one problem that can be solved with relative ease." I urged the Commission to promulgate a rule requiring conversion of university reactors and NRC-licensed government and industry reactors as well.
11. Dr. Theodore Taylor, the noted nuclear-weapons designer and a member of the Board of Directors of NCI, testified at the same hearing on behalf of NCI. He described security and safety concerns with respect to use of HEU at university reactors, and the ease with which HEU could be made into a nuclear weapon. "[C]ontinued use of highly enriched uranium in quantities of more than a few grams at domestic research reactors is highly undesirable and dangerous. . . . It is my opinion that HEU should be prohibited internationally," he concluded.
12. NCI submitted its comments to the NRC on a proposed rule, "Limiting the Use of HEU in Domestic and Research Test Reactors," on October 25, 1984. NCI called for speeding up compliance and asked the Commission to establish a two-year deadline for completing conversion. In 1986, the NRC ordered the conversion of all licensed, domestic research reactors.
Publications Related to HEU
13. NCI has sought to inform the public about the dangers associated with commercial use of HEU.
14. In February 1984, NCI released an Issue Brief, "The Use of Atom Bomb Material in Civilian Research Reactors." In June 1990, I raised the issue of whether allowing continued use of weapons-usable materials in civilian trade did not violate the spirit of the Nuclear Non-Proliferation Treaty in a speech, "Non-Proliferation in a Disarming World: Prospects for the '90s", which I presented at the Bellerive Conference in Geneva, Switzerland. In January 1991, NCI released a report by its Scientific Director, Dr. Milton Hoenig, describing the status of the RERTR program and the obstacles confronting it. Dr. Hoenig's report, "Eliminating Bomb-Grade Uranium from Research Reactors," was based on observations made at the 1990 international RERTR conference. It examined the feasibility of developing the remaining fuels needed to convert all research reactors and provided a complete list of reactors still to be converted, including U.S. reactors.
15. On May 16, 1991, NCI released a technical paper it had commissioned from Dr. J. Carson Mark, entitled "Some Remarks on Iraq's Possible Weapon Capability in Light of Some of the Known Facts Concerning Nuclear Weapons". The paper addressed the question "what could be done to manufacture one or more nuclear weapons with the material the Iraqis were known to have had available prior to the war." Dr. Mark found that, with the 22.3 kilograms of HEU in its safeguarded research reactor program, Iraq could have managed an explosion on the order of a kiloton from a gun-type assembly utilizing beryllium, or on the order of 20 kilotons from an implosion assembly without beryllium.
16. On June 23, 1991, the Washington Post published a lengthy "Outposts" article, "Scuttling an Easy Way to Stop Nuclear Proliferation," by me and Deborah Holland, NCI's Issues Director. We noted the Bush Administration's proposal to cut funding for conversion of foreign research reactors and made the case for completion of the RERTR program on the basis of nuclear lessons learned in Iraq. Senator Wirth inserted into the Congressional Record the full text of this article and Dr. Hoenig's report on the RERTR program [Congressional Record, July 10, 1991, pp. S9447-S9454].
17. In September 1995, I presented a paper, "RERTR at the Crossroads", co-authored by Mr. Kuperman, to the annual international RERTR conference. I stressed that the two key tenets of the RERTR program---universality and spent fuel return---were under attack. I cited Germany's proposed FRM-II reactor which would be built to use HEU fuel, and the Petten and Safari I reactors, which refused to use available LEU fuel. I pointed out the importance of resuming fuel development programs to enable U.S. and foreign high-power reactors to convert. Finally, I noted that unless the United States resumed take-back of foreign research reactor spent fuel, reactor operators would be forced to reprocess their spent fuel in Europe, removing an incentive for cooperation with the RERTR program. Calling the RERTR program "one of the unsung heroes of the IAEA and NPT regimes," I cautioned that the program was at a crossroads. With full support, it could end commerce in bomb-grade uranium. If South Africa and Germany withheld cooperation, it could soon collapse.
18. On November 14, 1995, NCI released a paper, "Iraq: How Close to a Nuclear Weapon?", by NCI's Scientific Director, Edwin Lyman. The paper analyzed information from an Iraqi defector who had run the nuclear weapons program before the Gulf War and concluded that the HEU Iraq had been diverting when the war broke out could have been utilized promptly in an implosion device without any need to re-enrich the material. In the paper, and in an op-ed article co-authored with me, which appeared in the International Herald Tribune on November 2, 1995, Dr. Lyman concluded that with its technical team still in place and with nuclear weapon components that have never been recovered Iraq might lack only the fissile material needed rapidly to assemble nuclear weapons.
19. On August 29, 1996, Alan Kuperman of NCI presented a paper, "Civilian Highly Enriched Uranium and the Fissile Material Conventions", at a symposium, "The Scope of a Fissile Material Convention", sponsored by the United Nations Institute for Disarmament Research and the Oxford Research Group in Geneva, Switzerland. He pointed out the relative ease with which HEU can be made into weapons, the widespread use of this fuel on university campuses where physical security is relatively lax, the importance of completing the RERTR program and the need for any fissile material cut-off convention to apply to civilian as well as military production of HEU.
20. In October 1997, I presented a paper, also co-authored by Mr. Kuperman, at the twentieth anniversary meeting of the RERTR program, in Jackson Hole, Wyoming. "The RERTR program stands on the brink of fulfilling its historic mission," I said, "but it is threatened by France's pending import of HEU from Russia, which risks undermining the RERTR regime. If Russia were to become an alternative supplier of HEU fuel to European reactor operators, the agreements to convert these reactors could be challenged, and nascent programs to convert Russian and Chinese reactors could be damaged." I described a "win-win" situation that instead would allow the United States to supply HEU to French reactors, if France agreed to convert them when suitable fuel was developed.
Legislative Activities
21. In 1986, NCI worked with Representative Howard Wolpe on an amendment to the Omnibus Diplomatic Security and Anti-Terrorism Act. Enacted by Congress, this amendment required independent reports by five federal agencies on the adequacy of physical protection of plutonium and HEU during transport and storage in civil programs outside the United States. Representative Wolpe's legislation was inspired by the report of NCI's International Task Force on Prevention of Nuclear Terrorism, which, among its recommendations, called for requiring conversion of all research reactors from HEU to LEU use and halting production of weapons-usable nuclear materials in weapon and non-weapon states.
22. At the request of Members of Congress, NCI also assisted in preparing the amendment offered by Rep. Charles Schumer to the National Energy Policy Act of 1992, enacted in October 1992, which is the focus of these proceedings. NCI had previously provided expert advice to Representative Jonathan Bingham in connection with the development of the precursor legislation to the Schumer Amendment, the Nuclear Nonproliferation Policy Act of 1982, which was considered by Congress in the early 1980s.
Participation in Licensing Proceedings
23. NCI filed a petition with the NRC in 1991 to intervene in opposition to the planned export of about 80 pounds of HEU to a research reactor (the HFR Petten reactor) operated by the Dutch and Germans in the Netherlands. [Dkt. No. 11004440, License No. XSNM-02611]. NCI sought to intervene because this was the first foreign operator to refuse to accept substitute fuel, unsuitable for weapons, developed by the RERTR program and successfully tested in the intended reactor. Several members of the House of Representatives co-signed a letter to the Commission in support of our petition. [Letter to NRC Chairman Ivan Selin from Congressmen Markey, Solomon, Brown, Stark, Wolpe, Kostmayer, Gejdenson and Scheuer, July 17, 1991]. In the Petten case, NRC staff recommended to the Commission that the Institute's petition be granted in part and that a "written hearing" be held on the proposed export.
24. The Institute also petitioned the NRC to intervene in opposition to a license application to export to France unirradiated HEU fuel from the defunct Fort St. Vrain nuclear reactor. [Dkt. No. 11004649, License No. XSNM-02748]. Following submission of intervention papers, the Executive Branch obtained a commitment from France that the HEU would be defabricated and blended down into non-weapons-usable LEU fuel.
25. NCI participated in licensing proceedings in the German state of Bavaria to oppose construction of the FRM-II reactor. This reactor, to be built at the Technical University of Munich, would be the first research reactor in the West built to use bomb-grade fuel since establishment of the RERTR program in 1978. If built as planned, the FRM-II reactor would seriously undermine international non-proliferation efforts and give operators of existing reactors an excuse to refuse to convert to LEU fuels and operators of new reactors an excuse to demand HEU fuel.
26. NCI submitted testimony to the Bavarian reactor-licensing authority in Munich in May 1994 and met in Germany with reactor officials, Bavarian legislators, federal lawmakers, local environmental officials. On November 1, 1995, I testified in opposition to the FRM-II at a hearing in the Bundestag. NCI's testimony helped bring to light information that the reactor's HEU fuel had never been tested and that representatives of the European Atomic Energy Community were seeking to circumvent the U.S. embargo on HEU by negotiating with Russia for supply of HEU fuel to European research reactors.
27. In July 1995, in the first public statement of opposition to the German plan, Energy Secretary Hazel O'Leary wrote NCI that in support of the Administration's policy of limiting use of HEU, DOE had offered to help the Germans redesign the reactor for LEU fuel.
28. NCI also opposed the construction at Oak Ridge of the Advanced Neutron Source, a large HEU-fueled research reactor which would have violated the international moratorium on new HEU-fueled reactors. On August 26, 1994, the Washington Post published an article by me and Alan Kuperman cautioning the Clinton Administration that the project could seriously undercut the U.S.-led international RERTR program. NCI also appealed directly to the U.S. government to cancel construction of this reactor on non-proliferation grounds. President Clinton announced cancellation of this reactor in February 1995.
29. In January and February 1996, NCI exchanged correspondence with the State Department on possible Russian sale of HEU to European research reactors. We asked the State Department to "warn both Russia and Germany that any new supply or use of HEU for research reactors violates vital U.S.security and non-proliferation interests."
30. In July 1997, Alan Kuperman of NCI met with European Commission and government officials in Belgium, France, Germany and the Netherlands concerning the elimination of trade in HEU. He urged conversion of the Petten reactor in the Netherlands. He also discussed how the United States might accommodate the demand for HEU fuel for French research reactors that cannot yet use LEU fuel, in return for a French commitment to convert to LEU fuel when it is developed and to cancel imports of HEU from Russia in the meantime. The United States is now engaging France in discussions of such a quid pro quo accommodation.
Support for DOE's Spent Fuel Take Back Policy
31. In October 1992, NCI began efforts to seek reactivation of the OSFP, which has since been implemented by the Clinton Administration. Under this program, which was in effect through 1988, irradiated U.S.-origin research reactor fuel was shipped back to the United States for reprocessing. DOE let the policy expire during the Bush Administration, leaving many foreign operators with no readily available means to dispose of their spent fuel. The Institute worked with U.S. representatives of foreign research reactor operators to seek reactivation of spent fuel take-backs under the OSFP, provided that three conditions are met: reactor operators must pledge to convert to LEU fuels as soon as such fuels are available; fuel development work must be renewed for the remaining unconverted reactors; and the spent fuel taken back from abroad must not be reprocessed.
32. In July 1993, the Clinton Administration agreed to resume take back of U.S.-origin HEU fuel from foreign research reactor operators, conditioned upon the reactor operators' agreeing to convert to non-weapons-usable fuel.
33. NCI prepared detailed comments on DOE's pre-decisional draft Environmental Assessment on the spent fuel "take back" policy, many of which were incorporated in the revised draft. NCI has worked closely with DOE to overcome environmental and local resistance to the take-back of spent fuel, providing support for DOE's successful defense against a lawsuit in South Carolina and its defense against a pending lawsuit in California. In response to South Carolina's objections to take-back unless fuel is reprocessed, we have proposed a direct-disposal program for the Savannah River Site -- an approach now being actively pursued by DOE.
Communications with Argonne National Laboratory
34. As noted in paragraph 20 above, I attended the October 1997 International RERTR Conference in Jackson Hole, Wyoming, to deliver a paper. During the course of the conference, I had occasion to discuss with officials of Argonne National Laboratory the status of various elements of the RERTR program, including spent fuel take back, development of suitable LEU fuels and targets and the problem of potential supply of HEU by Russia to European research reactor operators. On the subject of target development, Argonne officials noted to me that, although target development for the Indonesian research reactor was proceeding apace, with a full-scale demonstration expected for this spring, there was no LEU target development underway for the Canadian reactors. The Argonne officials expressed confidence that the type of target being developed for the Indonesian reactor would work in the Canadian reactors, but they noted that, without Canadian cooperation, it was impossible to adapt the Indonesian design to both the Canadian reactors and to the chemical processing used to remove Mo-99 from the targets in Canada. Despite repeated efforts to work out arrangements for developing the targets at Argonne and for demonstrating them in Canadian reactors and processing facilities, Argonne has been unable to win Canadian cooperation for such a program, Argonne officials told me. I was recently able to confirm with them that the situation remains the same and that, therefore, there is at this time no active target development for the Canadian reactors.
I declare under penalty of perjury that the foregoing is true and correct.
PAUL L. LEVENTHAL
Dated: Washington, D.C.
February 11, 1998
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