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2 International Monitoring of Storage and Disposal Facilities: The Potential Role of the International Atomic Energy Agency (IAEA) Bruno Pellaud* Switzerland Over the past few decades, the countries with operating nuclear power plants have attempted to develop domestic solutions to the disposal of what they con- sider to be radioactive wastes, be it high-level wastes resulting from chemical reprocessing of spent fuel at home or abroad or direct disposal of spent nuclear fuel. These efforts have been met with mixed success. Large nuclear countries, such as the United States, Russia, France, and the United Kingdom, have not yet succeeded in bringing into operation suitable disposal facilities. Small countries, in particular Finland and Sweden, have overcome the corresponding technical and political hurdles to achieve the objective of a truly closed nuclear fuel cycle—ura- nium ore out of geological formations, waste back into geological repositories. In most other countries, high-level wastes and spent fuel are simply stored temporar- ily in surface facilities, awaiting solutions of a more permanent nature. Therefore, the interim storage of waste (whether separated high-level waste or spent fuel) has become a necessary and crucial prerequisite to their final disposal. Storage facilities are in operation and are being built in several countries. There is no international market for services in this area, although the Russian Federation receives Russian-supplied fuel from Russian-supplied power plants in Northern and Eastern Europe, with a potential longer term offer to do so for other spent nuclear fuel of non-Russian origin. In this context the storage of spent fuel has become a candidate for multilateral approaches, primarily at the regional   Bruno Pellaud is president of the Swiss Nuclear Forum, former deputy director general of the * IAEA in charge of the Safeguards Department (1993-1999), and former chairman of the IAEA Expert Group on Multilateral Nuclear Approaches (2004-2005). 

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 SPENT NUCLEAR FUEL STORAGE FACILITIES level. Storage of special nuclear materials in a few safe and secure facilities will enhance safeguards and physical protection.1 The final disposal of spent fuel is clearly a candidate for multilateral ap- proaches. Such an approach offers major economic benefits and substantial non- proliferation benefits, although it presents legal, political, and public acceptance challenges in most countries.2 WHAT ARE THE POTENTIAL HOST COUNTRIES? Russia is the first country to express and formulate in some detail a willing- ness to receive foreign nuclear wastes. Are there others? First on the list should be countries with favorable conditions, that is, with a very stable geological underground of vast expanse. Australia is a prime example. However, political restraints—that is, the reluctance to import foreign wastes—preclude a selection solely on the basis of technical and safety arguments. In the context of “fresh fuel lease–spent fuel take-back” arrangements promoted in particular by the United States, an engagement of other large nuclear countries in that discussion would be quite welcome in terms of economics for the customer countries and nonpro- liferation for the world community. The Russian Federation has stated its interest in storing spent fuel on a long- term temporary basis, a proposal that could possibly be extended to disposal later. The United States has expressed no interest in storing or disposing of foreign fuel whatsoever, having already been confronted with major public opposition to the repatriation of highly enriched uranium fuel from the research reactors exported by U.S. companies over the past decades. Yet in view of the somewhat exaggerated concerns expressed by the political establishment over the risks of the back-end nuclear fuel cycle, one would hope that the United States would volunteer to give shelter to the spent fuel of the world, which frequently contains U.S. technology or uranium. A few years ago the large U.K. company BNFL (British Nuclear Fuels PLC) tried to develop an elegant solution, which would have allowed it to complete its nuclear services (from cradle to grave) over the whole fuel cycle through a partnership with Australia, the country with the best geological sites in the world for ultimate disposal. WHO ARE THE POTENTIAL CUSTOMERS? By customer one understands here countries that would ship nuclear wastes beyond their own borders for storage or disposal. It can be assumed as a premise 1 IAEA Working Group on Multilateral Nuclear Approaches (MNA). Report of February 2005, § 304 (www.iaea.org/Publications/Documents/Infcircs/005/infcirc60.pdf). Accessed online March 13, 2008. 2 Ibid., § 301.

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5 MONITORING OF STORAGE AND DISPOSAL FACILITIES that there would be no export from large countries with large nuclear power pro- grams (as well as from nuclear weapons states). The potential customers would be, first of all, small countries with a few nuclear plants, with or without a suitable geology yet seeking more economical solutions by regrouping their resources. Also possible are countries with a sizable nuclear power program but with few suitable geological sites, for example, Japan. NO “SHIP AND FORGET” Transfers of nuclear waste from the exporting country to the host country of an interim storage facility or a final repository would be done under various bi- lateral or multilateral agreements at the commercial and governmental levels. All participating countries would presumably be signatories to the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, the major legal instrument prevailing in that field.3 The joint convention applies to spent fuel and radioactive waste resulting from civilian nuclear reactors and applications and to spent fuel and radioac- tive waste from military or defense programs, if and when such materials are transferred permanently to and managed within exclusively civilian programs or when declared as spent fuel or radioactive waste for the purpose of the convention by the contracting party. The convention also applies to planned and controlled releases into the environment of liquid or gaseous radioactive materials from regulated nuclear facilities. The obligations of the contracting parties with respect to the safety of spent fuel and radioactive waste management are based to a large extent on the prin- ciples contained in the IAEA safety fundamentals document, The Principles of Radioactie Waste Management,4 published in 1995. They include, in particular, the obligation to establish and maintain a legislative and regulatory framework to govern the safety of spent fuel and radioactive waste management and the obligation to ensure that individuals, society, and the environment are adequately protected against radiological and other hazards, among other things, by appro- priate siting, design, and construction of facilities and by making provisions for ensuring the safety of facilities both during their operation and after their closure. The convention imposes obligations on contracting parties in relation to the trans- boundary movement of spent fuel and radioactive waste based on the concepts 3 IAEA. 1997. The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, IAEA Information Circular INFCIRC/546. Vienna: IAEA. Available online at www.iaea.org/Publications/Documents/Infcircs/997/infcirc56.pdf. 4 IAEA. 1995. The Principles of Radioactive Waste Management, Safety Fundamentals Series No. 111-F. Vienna: IAEA. Available online at http://www-pub.iaea.org/MTCD/publications/PDF/ Pub989e_scr.pdf.

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6 SPENT NUCLEAR FUEL STORAGE FACILITIES contained in the IAEA’s Code of Practice on the International Transboundary Moement of Radioactie Waste.5 The joint convention does consider the international aspects of waste man- agement, for example, convinced that radioactive waste should, as far as is compatible with the safety of the management of such material, be disposed of in the State in which it was generated, whilst recognizing that, in certain circumstances, safe and efficient management of spent fuel and radioactive waste might be fostered through agreements among Contracting Parties to use facilities in one of them for the benefit of the other Parties, particularly where waste originates from joint proj- ects. (Preamble, p. xi) and Article 1. Objectives The objectives of this Convention are: (i) to achieve and maintain a high level of safety worldwide in spent fuel and radioactive waste management, through the enhancement of national measures and international co-operation, including where appropriate, safety-related tech- nical co-operation. (Article 1, Objectives, p. i)6 The joint convention does not envisage an international verification system to ensure that national waste facilities respect the safety requirement spelled out in the convention, whether or not a national facility contains foreign waste. However, one may predict that facilities containing foreign waste will be verified to some degree by the exporting countries. For domestic and international politi- cal reasons, there will be a need for some monitoring of spent fuel storage and disposal (even waste) after shipment, to protect the exporting country politically from accusations of irresponsible dumping. International waste management solutions will not be of a simple commercial nature along the lines of ship and forget. The IAEA Expert Group on Multilateral Approaches brought together by the IAEA Director General in 2004-2005 took a serious look at this matter, and it supported the principle of multilateral storage and disposal arrangements: The IAEA could facilitate this arrangement by acting as a “technical inspec- 5 IAEA. 1990. Code of Practice on the International Transboundary Movement of Radioactive Waste, Information Circular INFCIRC/386. Vienna: IAEA. Available online at http://www.iaea. org/Publications/Documents/Infcircs/Others/inf86.shtml. 6 IAEA. 1997. The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, Information Circular INFCIRC/546. Vienna: IAEA. Preamble, p. xi, and Article 1, Objectives, p. i. Available online at www.iaea.org/Publications/Documents/ Infcircs/997/infcirc56.pdf.

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7 MONITORING OF STORAGE AND DISPOSAL FACILITIES tion agency” assuring the suitability of the facility and applying state-of-the-art safeguards control and inspections.7 It is also important that international oversight of an MNA [Multilateral Nuclear Approach] be arranged, as needed, to achieve confidence of partners on adequate safety and physical security of the proposed facility.8 In several cases, domestic policy in the customer’s state will require assur- ances that the transferred waste is properly managed and not simply dumped at some faraway site. This would in particular be the case for Switzerland. The new Swiss Nuclear Law, which came into force in February 2005, addresses the issue in Article 33: A permit will be granted for the export of nuclear waste … when the following conditions are fulfilled…: 1. The recipient State has approved the import of nuclear waste under a government-to-government agreement; 2. A suitable nuclear installation is available in the recipient State with cor- responding up-to-date scientific and technical standards; 3. Transit States have approved such transports; 4. The sender has firmly agreed with the recipient of nuclear waste—with the endorsement of the authority designated by the Swiss Government— that such waste can be returned to the sender in case of necessity. Should Switzerland export waste, the second paragraph above will clearly oblige the federal government to ascertain in one way or the other that the instal- lation is and remains suitable and that it will satisfy state-of-the-art technical requirements and standards. What is remarkable in this law is that a mirror clause applies to the import of nuclear waste! With a strong chemical industry, Switzerland has a long experi- ence in bidirectional international transfers of toxic waste—with the import and export of various kinds of waste and ensuing optimization and specialization of disposal facilities. All such transfers occur under the stringent regulations of the international Basel Convention with special rules applying to transfers within the OECD (Organization for Economic Cooperation and Development).9 7 IAEA. 2005. P. 94, §304 in Multinational Approaches to the Nuclear Fuel Cycle: Expert Group Report Submitted to the Director General of the International Atomic Energy Agency, Informa- tion Circular INFCIRC/640. Vienna: IAEA. Available online at http://www.iaea.org/Publications/ Documents/Infcircs/005/infcirc60.pdf. 8 Ibid., p. 102, §339. 9 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. 1989. Available online at www.basel.int.

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8 SPENT NUCLEAR FUEL STORAGE FACILITIES FROM bILATERAL TO INTERNATIONAL MONITORING THROUGH THE IAEA At first the parties—sender and recipient—would agree on some kind of bilateral monitoring by dedicated bilateral teams or international commercial companies that provide technical services focusing on quality, environmental, health, safety, social accountability, and information management issues, such as Bureau Veritas or Société Générale de Sureillance. One can think of a possible minor initial role for the IAEA in such schemes to add a level of international confidence. At a later stage, after the establishment of many bilateral arrangements, some kind of international monitoring may become more judicious. Various organiza- tions could fulfill such a function. This is the reason for raising the question of a potential role for the IAEA. What kind of monitoring or, rather, what kind of assurances are to be provided? First, one should clearly understand that such monitoring would have noth- ing to do with nuclear safeguards, with the mandate of the IAEA to ensure that the nonproliferation commitments of the host country are being respected. IAEA safeguards would be a parallel and independent activity of the agency. In any case, the providing state would have no proliferation concerns as do Russia and the United States since proliferation has already occurred there. In nonnuclear weapons states—for example, Australia—normal safeguards would apply inde- pendently and would be sufficient. However, in the case of the nuclear weapons states, the supplying countries would certainly want to ensure that nuclear waste transferred under a storage/disposal agreement would not be diverted to the host country’s weapons program. The IAEA monitoring could deal with the following areas, with a scope de- pending on the bilateral transfer agreement concluded between the parties: •  Technical design—proper international design standards. In line with the Joint Waste Convention, the facility will have to satisfy international state-of- the-art design norms as well as technical and quality assurance (QA) standards. A customer country would want to delegate the monitoring to the IAEA, with a stop-and-go authority or only a warning function. •  Safety—design and operation to exclude accidents. The design, mainte- nance, and operation procedures of the facility should exclude the possibility of nuclear accidents. Review of national enforcement should be included. •  Environmental—design and operation to exclude environmental dam- age. The design, maintenance, and operation procedures of the facility should exclude the possibility of radioactive contamination of the environment above a certain limit for the whole operational life of the facility, in accordance with domestic and international norms.

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9 MONITORING OF STORAGE AND DISPOSAL FACILITIES •  Security—design and operation to exclude misuse and thefts. Formula- tion of the Euratom Treaty, Article 77, would be relevant for that task: “In ac- cordance with the provisions of this Chapter, the Commission shall satisfy itself that, in territories of Member States, a) ores, source materials and special fissile materials are not diverted from their intended uses as declared by the users.” When translated into a joint international facility, this would read: “The IAEA shall satisfy itself that, in the storage or disposal facility, spent fuel and other materials are not diverted from their intended uses as declared by the users.” Under this heading, the physical protection of the nuclear materials should be fully implemented in line with the IAEA-defined guidelines.10 •  Financial management—sound use of invested resources, especially in the case of joint financing of facilities. Different models are possible—for example, financial matters only in the hands of the recipient country (with no monitoring) or a joint trusteeship is set up (in which case the monitoring could be bilateral or even with a third party at the table, for example, the IAEA). INSTITUTIONAL INTERGOVERNMENTAL ARRANGEMENTS There is a need for a solid nuclear legal and regulatory basis in the recipient country. IAEA publications include many details about the requirements for set- ting up a firm legal basis that will create the necessary trust of the international partners.11 As already noted, the intergovernmental arrangements should refer specifically to international legal instruments in order to help create a smooth legal overlap between giver and recipient countries, for example, the Joint Con- vention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, referred to above. A number of detailed legal questions will need to be settled between the partners, such as long-term liability (whether it is the responsibility of the host country or a shared responsibility) and ultimate ownership of the nuclear waste (whether it belongs to the host country or the providers), especially in relation to the retrievability of buried nuclear waste, a decisive factor for some countries, as exemplified above by the last mentioned paragraph of the Swiss Nuclear Law. bUSINESS AND COMMERCIAL MODEL There is also a need for a solid business and commercial basis between the partners to clearly understand who is responsible for providing the services 10 IAEA. 1999. The Physical Protection of Nuclear Material and Nuclear Facilities, Informa- tion Circular INFCIRC/225, Rev. 4. Vienna: IAEA. Available at http://www.iaea.org/Publications/ Documents/Infcircs/999/infcirc5rc/re_content.html. 11 Stoiber, C., A. Baer, N. Pelzer, and W. Tonhauser. 2003. Handbook on Nuclear Law. Vienna: IAEA. Available online at www-pub.iaea.org/MTCD/publications/PDF/Pub60_web.pdf.

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0 SPENT NUCLEAR FUEL STORAGE FACILITIES and financial contributions necessary to ensure smooth operation of the partner- ship—for example, •  a trusteeship of recipient countries and providers •  joint definition of the kind of services expected from the IAEA •  monitoring services to be paid to the IAEA on a time and expenses basis •  a monitoring model established by the IAEA (the agency could refuse to engage if the scope would be incomplete, since its reputation would be at stake) •  IAEA reports made to the trusteeship on a yearly basis and succinctly in its own annual report IAEA ADMINISTRATIVE MODEL How would the IAEA organize such monitoring work internally? Once again, it should be emphasized that such activity has no relationship to nuclear safeguards; these would not be safeguards inspections. Therefore, the work would not be entrusted to the Department of Safeguards of the IAEA, but rather jointly to the Department of Nuclear Energy (Division Nuclear Fuel Cycle and Waste Technology) and the Department of Nuclear Safety and Security, performing here an agency service to its member states. In practical terms the agency would set up ad hoc internal teams, with per- sonnel drawn from these two departments, with the occasional involvement on a personal basis of some safeguards inspectors and with safeguards technical sup- port. At any rate, because of the required confidentiality, there will be no team of external experts, as on IAEA peer review missions in the safety and nuclear licensing fields. As far as practical verification arrangements are concerned, the IAEA would make use of human and technical resources to carry out its monitoring functions. There would be human inspections with physical and visual review of facility features, the taking of environmental samples to assess possible leaks and spills, and so forth. The technical equipment in support of inspections would include radiation detection equipment, seals, and sampling equipment. In special situa- tions the IAEA could also call on remote monitoring—that is, using tamperproof digital cameras to transmit pictures back to IAEA headquarters on a regular basis or upon image changes. The IAEA would have to report in an appropriate fashion on the findings of its verification activities. Upon detection of irregularities, this would be done as soon as possible to the partners, on a confidential basis. Once a year the IAEA would submit to the partners a confidential annual report. However, by its very status as an independent international organization, the agency would need to report briefly once a year to its own constituency, the IAEA Board of Governors, on the general scope of the controls performed.