The Legal and Regulatory Context for MPC&A

Two presentations explicitly focused on legal and regulatory issues, but Leonard Spector’s paper, discussed above, also made a number of points regarding the international legal context for materials protection, control, and accounting (MPC&A). Spector suggested that states might in fact be legally obligated to establish and maintain effective nuclear safeguards under some readings of international law. To meet their responsibilities under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), for example, nuclear-weapon States must maintain an accurate accounting of their nuclear materials. This requires an effective MPC&A system. Similarly, the NPT, by stipulating that all exports of nuclear equipment and materials must be monitored by states, may implicitly mandate the establishment of comprehensive safeguards systems for all nuclear materials and facilities, whether under civil or military control. Spector also wondered whether international norms requiring that states manage dangerous activities in a way that does not damage other states might have some application in this field. In the discussion following Spector’s presentation, Carlton Stoiber argued that although there is growing international pressure on states to implement effective domestic safeguards, the broad interpretation of international law described by Spector, that effective nuclear safeguards are mandatory rather than voluntary, is neither general state practice nor the understanding of most legal experts at this point.

Stoiber began his presentation by outlining four issues that have an important bearing on the legal and regulatory framework for MPC&A. The first issue is the importance of regulatory independence in promoting safeguards. There is often a tension between independent regulatory bodies and other government



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Protection, Control, and Accounting of Nuclear Materials: International Challenges and National Programs - Workshop Summary The Legal and Regulatory Context for MPC&A Two presentations explicitly focused on legal and regulatory issues, but Leonard Spector’s paper, discussed above, also made a number of points regarding the international legal context for materials protection, control, and accounting (MPC&A). Spector suggested that states might in fact be legally obligated to establish and maintain effective nuclear safeguards under some readings of international law. To meet their responsibilities under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), for example, nuclear-weapon States must maintain an accurate accounting of their nuclear materials. This requires an effective MPC&A system. Similarly, the NPT, by stipulating that all exports of nuclear equipment and materials must be monitored by states, may implicitly mandate the establishment of comprehensive safeguards systems for all nuclear materials and facilities, whether under civil or military control. Spector also wondered whether international norms requiring that states manage dangerous activities in a way that does not damage other states might have some application in this field. In the discussion following Spector’s presentation, Carlton Stoiber argued that although there is growing international pressure on states to implement effective domestic safeguards, the broad interpretation of international law described by Spector, that effective nuclear safeguards are mandatory rather than voluntary, is neither general state practice nor the understanding of most legal experts at this point. Stoiber began his presentation by outlining four issues that have an important bearing on the legal and regulatory framework for MPC&A. The first issue is the importance of regulatory independence in promoting safeguards. There is often a tension between independent regulatory bodies and other government

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Protection, Control, and Accounting of Nuclear Materials: International Challenges and National Programs - Workshop Summary agencies regarding jurisdiction for protecting national security. The degree of oversight that the regulatory agency has in establishing standards and procedures, in monitoring compliance with those procedures, and in independent inventory verification is very important. The distribution of oversight authority among government agencies is also among the questions that must be addressed. Second, Stoiber argued that complacency can be a critical factor in degrading effective safeguards. Complacency in following safeguards procedures is a more difficult problem, he argued, than is complacency in obeying safety rules. This is because the consequences of ignoring safety procedures are much clearer and can be directly linked to a specific action (or failure to act), while events resulting from complacency about safeguards are much more insidious and difficult to identify or measure. Nevertheless, regulatory agencies can and should address complacency about safeguards through inspections to verify compliance with procedures and enforcement measures to penalize infractions. The third issue that Stoiber raised was that, in order for safeguards to be sustained effectively over time, resources and political support must be adequate, predictable, and enduring. This is because effective safeguards require repeated expenditures for expensive equipment and maintenance and a well-trained and motivated workforce of adequate size. All of these requirements can be reflected in regulations. Regulations alone, however, are not enough. Stoiber noted that effective regulatory oversight requires an adequate legal and organizational framework, sufficient resources, and political support. Finally, Stoiber discussed the balance between the need to protect sensitive information against the need for transparency and openness in the U.S. regulatory system for domestic nuclear safeguards. Before September 2001, the U.S. Nuclear Regulatory Commission (NRC) had developed a highly transparent approach to information about domestic nuclear safeguards. After the terrorist attacks, however, the National Security Council directed the NRC to restrict the dissemination of information of potential value to terrorists. Since that time, the commission has developed a process that weighs the costs and benefits of releasing information and tries to lean toward transparency whenever possible. Stoiber also provided a list of U.S. statutes and executive orders relevant to public disclosure of sensitive information related to nuclear energy, materials, and weapons. “Classified Information” includes both “National Security Information” governed by Executive Order 12598 as amended by Executive Order 13292, and “Restricted Data” as defined by the Atomic Energy Act, section 142. “Safeguards Information” is governed by the Atomic Energy Act, section 147. “Critical Infrastructure Information” is defined by the Homeland Security Act of 2002, Subtitle B: Critical Infrastructure Information Act of 2002, sections 212-214. Yuri G. Volodin, of the Russian Federal Inspectorate for Nuclear and Radiation Safety (Gosatomnadzor, or GAN),1 described his agency’s activities in 1   This agency was renamed during the reorganization of the Russian government that took place in 2004. It is now the Federal Service for Environmental, Technological, and Nuclear Oversight.

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Protection, Control, and Accounting of Nuclear Materials: International Challenges and National Programs - Workshop Summary establishing and strengthening Russia’s nuclear regulatory framework. He listed four elements of nuclear infrastructure oversight: regulatory documents, licensing, inspections, and sanctions. The areas of nuclear activity requiring regulation, in his view, are facility design and construction, facility operation, decommissioning of outmoded facilities, inspections, and the prevention of terrorism. Volodin laid out a hierarchy of legal and regulatory documents that are under development in Russia, emphasizing that the process of identifying and filling gaps in Russia’s regulatory structure is evolutionary and ongoing. The hierarchy is as follows: Laws Normative acts, resolutions, and orders of the president and government Federal norms and rules regarding the use of atomic energy Documents produced by regulatory authorities Regulatory documents produced by nuclear agencies and facilities Major documents regulating MPC&A activity in Russia include the Federal Law on the Use of Atomic Energy (1995), the Federal Law on Radiation Safety (1995), the Federal Law on Protection against Terrorism (1998), the Main Rules of Accounting and Control of Nuclear Materials (2001), and the Provisions for Oversight of the State System of Nuclear Material Accounting and Control (2003). Additionally, there are legal provisions for preventing nuclear terrorism and mitigating the consequences of a nuclear terrorism event; rules on the physical protection of nuclear materials, nuclear installations, and storage sites for nuclear materials; rules for the safe and secure transport of nuclear materials; and rules for physical protection of radiation sources, radioactive substances, radioactive wastes, and storage areas for those materials. Volodin explained that a number of regulatory documents were being developed to supplement existing rules and regulations. Volodin next explained some of the limitations and obligations stemming from the application of physical security procedures to nuclear facilities. These include restrictions of the rights of persons who work at or visit nuclear sites, checks to ensure that trusted persons are reliable and do not have physical problems relevant to security issues, and the responsibility of individuals and institutions to uphold Russian law governing the use of atomic energy. The objectives of physical security at nuclear facilities include preventing unauthorized access to nuclear sites, nuclear materials, or radioactive sources; detecting and preventing attempted acts of terrorism and sabotage; detecting theft of nuclear materials or radioactive sources; and applying physical protection to the transport of nuclear materials and at all stages of the design, construction, use, and decommissioning of nuclear facilities. Volodin reviewed a number of measures that the Russian Federation had recently taken to improve physical security at nuclear installations. These included providing an armed capability to defend against air targets, establishing protected

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Protection, Control, and Accounting of Nuclear Materials: International Challenges and National Programs - Workshop Summary areas around nuclear sites within 3 to 5 kilometers of the site, restricting access to those protected areas, strengthening the capabilities of protective forces, developing a federal program to upgrade physical protection, accelerating planned physical upgrades and the development of related regulatory documents (such as a national Design Basis Threat assessment), and accelerating the development of the state system for early detection and prevention of nuclear terrorism. He concluded that the international community should develop statistical tools for jointly analyzing and assessing the threats of attacks against nuclear facilities.