UNITED STATES NUCLEAR REGULATORY COMMISSION
Washington, D.C. 20555
In the Matter of )
TRANSNUCLEAR, INC. ) Docket No. 11005267
(Export of 93.34% Enriched Uranium) ) License No. XSNM 03192
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 proceeding.
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.
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 1992, 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 responded to a request from Senator Timothy Wirth for assistance 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.
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.
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. We stressed that the two key tenets of the RERTR program---universality and spent fuel return---were under attack. We 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. We pointed out the importance of resuming fuel development programs to enable U.S. and foreign high-power reactors to convert. Finally, we 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," we 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, 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," we 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." We 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.
21. In October 1998, I presented a paper, co-authored by Mr. Kuperman, at the 21st annual meeting of the RERTR program, in So Paulo, Brazil. We recalled that, In the early 1990s, a number of threats to the regime arose within the research reactor community. The good news in 1998 is that almost all of these internal threats to the RERTR regime have been resolved favorably. Among the positive developments we cited were renewed development of ultra-high density LEU fuels to enable conversion of the few remaining research reactors that still require HEU fuel; the United States has resumed "take-back" of U.S.-origin spent fuel from foreign countries; the RERTR program also has made significant progress in developing LEU targets for production of medical radio-isotopes, currently the other main civilian use of HEU; France and China have announced that their next-generation, high-power research reactors will use LEU fuel; the United States canceled its planned Advanced Neutron Source, which was to have used HEU fuel; the United States has conducted feasibility studies on converting its own government research reactors, to complement the ongoing conversion of U.S. university research reactors; there was new hope that Germany's FRM-II, which threatened to become the first new high power reactor in more than a decade to violate the RERTR regime by being built to use HEU, might now be constrained to use LEU due to the recent federal elections in Germany; the RERTR program had become truly universal, as Russia and China have cooperated for several years to enable conversion of reactors in, and supplied by, those two states; Russia had not yet exported any HEU to Western reactor operators; the new manager of the HFR Petten reactor -- one of the few reactors operating outside the principles of RERTR by not converting to available LEU fuel -- had indicated willingness to convert the reactor as soon as a feasibility study and re-licensing can be completed successfully.
22. In October 2000, I issued a position paper, co-authored with Mr. Kuperman, at the 23rd annual meeting of the RERTR conference, in Las Vegas, Nevada, entitled Forging Consensus to Phase Out HEU for Medical Isotope Production: A Proposed Path Forward. The paper built upon another, authored by Mr. Kuperman, A Level Playing Field for Medical Isotope Production---How to Phase Out Reliance on Highly Enriched Uranium, presented in October 1999 at the 22nd annual meeting of the RERTR conference in Budapest, Hungary. Both papers argued that production of medical isotopes should be converted from reliance on HEU targets to LEU targets, to accord with the prevailing international consensus to phase out civil HEU commerce. The papers included an attached a draft conversion pledge for consideration by producers of such isotopes. Since then, the principle of such a pledge has been embraced by the U.S. Department of State.
23. In 1986, NCI worked at the request of 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 had been 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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 and 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.
29. 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.
30. 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.
31. 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."
32. 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.
33. In December 1997, NCI petitioned the Commission for leave to intervene in opposition to two license requests to export to Canada almost 30 kilograms of HEU. Although the Commission subsequently approved those licenses, it stated in its order that, NCI has, in effect, obtained the end result -- Canadian cooperation permitting an active LEU target development program for the Canadian reactors -- that it appears ultimately to be seeking. We wish also to point out that our review of these export applications was significantly aided by NCI's participation, albeit not in a formal hearing context. Indeed, our decision regarding the consistency of the proposed exports with the statutory criteria was made only after requesting additional information -- prompted in large part by the concerns highlighted by NCI -- from the Executive Branch.
34. In December 1998, NCI petitioned the Commission for leave to intervene in opposition to a license request to export to Canada almost 130 kilograms of HEU targets over five years for isotope production in the new MAPLE reactors and associated New Production Facility. On June 16, 1999, the Commission convened a public meeting to discuss the application, inviting NCI to testify. On June 29, 1999, the Commission issued a conditional approval of the applicants license but addressed several of NCIs concerns by requiring that the applicant and the U.S. Executive Branch submit annual progress reports on the status of the applicants conversion to LEU targets. The Commission indicated that NCIs concerns had been warranted, stating: At the time NCI filed its pleadings with the Commission, the continuing existence and extent of an active program to develop LEU targets for use in the MAPLE reactors were not readily apparent. . . . [However, subsequent] actions taken by the participants . . . satisfy us that an active LEU target development program for the MAPLE reactors is currently under way . . . The Commission also reserved the right to call a public meeting after receiving the requested annual reports, and did so after receiving the initial set of reports, inviting NCI to testify at a meeting on July 10, 2000. In its testimony, presented by me and Alan Kuperman, NCI argued that because of delays in commencing operation of the MAPLE reactors, the applicant would require less HEU than previously anticipated prior to conversion to LEU, so that the Commission should reduce the amount of HEU authorized for export under the license. The Commission subsequently ruled that because the applicant had failed to export the initial 40 kilograms authorized for export during the first year of the license, the applicant could only export a total of 90 kilograms under the license, rather than the originally authorized 130 kilograms.
35. In April 2000, NCI amended its longstanding petition asking the Commission for leave to intervene in a recently amended request by the HFR Petten research reactor in the Netherlands to export 150 kilograms of HEU for use as fuel prior to its conversion to LEU fuel. After the Executive Branch provided further information, NCI submitted a further revision in June 2000, indicating that it no longer opposed export of HEU to the applicant because it appeared to be in compliance with the Schumer amendment, having recently signed a pledge to convert to LEU. However, NCI continued to have some concerns that the applicants schedule for conversion was not expeditious and could result in unnecessarily protracted commerce in HEU and/or the build-up of a surplus stock of U.S.-origin HEU in Europe, either of which could undermine U.S. nonproliferation policy and goals. Thus, NCI sought conditions on the license to ensure expeditious conversion and to avoid the build-up of a surplus stock of U.S.-origin HEU in Europe. On August 24, 2000, the Commission rejected NCIs petition but acknowledged the importance of avoiding the creation of surplus stocks of U.S.-origin HEU in Europe, stating: The Commission further notes that this export license would authorize the export of HEU in annual shipments not to exceed 37.587 kilograms per year over a four-year period. This gives the Commission the ability to monitor the conversion process and adjust the license as necessary to avoid the potential accumulation of HEU fuel significantly in excess of the Petten reactor's actual needs. . . . [Therefore, the license] is not likely to result in the accumulation of significant amounts of excess HEU that would then be available for retransfer to alternate end-users within EURATOM.
36. In December 2000 and February 2001, NCI wrote to NRC Chairman Meserve, regarding a Canadian license request to export 10 kilograms of HEU for target material for production of medical isotopes at the NRU reactor. NCI did not oppose production of medical isotopes using HEU targets in the NRU at the time, but noted that the application was necessitated by further delays in starting isotope production in Canadas new MAPLE reactors and New Processing Facility. Because of these delays, the MAPLE reactors and NPF, once started, would not have to operate as long with HEU targets prior to conversion to LEU targets. Thus, NCI requested that the Commission rather than approve a new license for the NRU instead modify the existing MAPLE license to permit 10 kgs. of HEU already authorized for export under that license to be redirected to the NRU. Although the Commission declined to re-open the MAPLE license, it did address some of NCIs concerns by immediately approving only half the requested export for NRU, barring the second half until the applicant has provided the Commission with at least 60 days notice of the export and with information concerning the status of the NRU reactor and the need for the additional material. The Commission also directed the staff to obtain written assurances from the licensee that, consistent with its current schedule, it will not make any additional shipments [for the MAPLE reactor] until the Commission receives the next annual report on the Maple reactor program, which is due in May 2001.
37. 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.
38. 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.
39. 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.
I declare under penalty of perjury that the foregoing is true and correct.
PAUL L. LEVENTHAL
Dated: Washington, D.C.
June 25, 2001