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15 International Storage of Commercial Spent Fuel and High-Level Waste: Considerations for U.S. Approval to Ship Spent Fuel with U.S.-Origin Uranium to Russia for Storage and Disposal Alex R. Burkart and Janet M. Gorn Office of Nuclear Energy Affairs, U.S. Department of State Many steps have been taken over a period of years to work toward acceptable solutions for the safe disposal of spent fuel and radioactive waste, most recently through the first meeting of the parties to the Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management. The U.S. government sees a continued high priority for these activities, as more coun- tries make progress toward national geological disposal and enter active phases of decommissioning and dismantling. The subject is both national and global in character. For countries for which national disposal solutions are not feasible, developing and implementing mul- tinational solutions is a possible alternative. However, it is important that the search for a multinational solution should not jeopardize any ongoing national programs. In the United States there are requirements established by U.S. law and policy regarding any scheme for international storage and disposal of spent fuel containing U.S.-origin nuclear materials. Specifically, questions arise with regard to the opportunity created by the 2001 Russian legislation and numerous related proposals. These factors and others complicate the issue of international coopera- tion in the storage and disposal of spent fuel and high-level radioactive waste. THE CURRENT SITUATION Requirements of the Joint Convention Ultimate responsibility for ensuring the safety of spent fuel and radioactive waste rests with the state. This is affirmed in the Preamble to the Joint Convention 99

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00 SPENT NUCLEAR FUEL STORAGE FACILITIES on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management. The convention also recognizes the principle that responsibility for the safety of spent fuel and radioactive waste rests with the state that produced it. The convention entered into force on June 18, 2001. On September 29, 1997, the United States became the first signatory to the convention. On April 9, 2003, it became the 31st member to ratify the convention, becoming a full contracting party on July 14, 2003. The convention now has 42 signatories and 34 contract- ing parties. The convention incorporates principles important to all states, which en- hances and strengthens the world’s safety culture. We look forward to the Russian Federation becoming a contracting party in the near future and to its participation in the second meeting of the parties in May 2006. While giving primacy to the responsibility of the state that generates spent fuel and nuclear waste to dispose of it on its own territory, the joint convention recognizes that in certain circumstances safe and efficient management of spent fuel and radioactive waste might be fostered through agreements among contract- ing parties to use the facilities in one of them for the benefit of the other parties, particularly where the waste originates from joint programs. Each proposal for international spent fuel or high-level waste storage or disposal must be evaluated individually on its merits. The International Atomic Energy Agency (IAEA) has developed a Code of Practice on the Transboundary Movement of Radioactive Waste. The most important provisions of the code found their way into the joint convention. This code and the convention provide some technical guidance for a state to use in determining whether or not to par- ticipate in an international repository or spent fuel or waste transfer. The over- riding principle is that a sending state should ship waste or spent fuel only with the consent of the receiving state and only after satisfying itself that the receiv- ing state has the administrative and technical capacity, as well as the regulatory structure, needed to manage the waste or spent fuel safely. Similarly, the receiv- ing state should only consent to receiving the waste or spent fuel if it can satisfy itself that it can meet those requirements. This means that shipments of spent fuel and nuclear waste fall clearly under state jurisdiction and reflect a state’s policy. While technical factors are important in evaluating a proposal, political factors always count in state decisions as well. U.S. Waste Management Cooperation In general, the United States favors the idea of states in a region getting together to solve their spent fuel and radioactive waste issues collectively. Con- ceptually, this is similar to the waste compact program in the United States in which several U.S. states join together in compacts to locate a low-level waste repository in one of them, rather than locate separate repositories in each. Some progress is already under way in moving in this direction.

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0 COMMERCIAL SPENT FUEL AND HIGH-LEVEL WASTE One example is the agreement between Luxembourg and Belgium for Bel- gium to take Luxembourg’s radioactive waste. Another example is the announce- ment by Slovenia, at the first meeting of the parties to the joint convention, that it had taken the first steps in support of a regional approach by hosting a meeting to begin discussion among the Newly Independent States (NIS). Subsequent an- nual meetings have taken place since this announcement. A third example is the announcement by the European Commission in March 2004 of its readiness to finance (50,000 euros) a European regional repository feasibility study to move the concept ahead. Where once a collective solution was regarded with deep sus- picion or skepticism by many, today a shared solution is gaining momentum. The United States has maintained a strong program of international co- operation in the area of radioactive waste management to assist other states in managing their own spent fuel and radioactive waste. For example, U.S. nuclear cooperation committee meetings with Taiwan and the Republic of Korea have been held for more than 15 and 25 years, respectively, and spent fuel and radioac- tive waste management have been on the agenda of most of those meetings. Many states have gained an understanding of the U.S. Department of Energy’s (DOE) site evaluation methodology and repository science programs. States, however, should not expect to see the United States giving consid- eration to taking irradiated U.S.-origin fuel supplied for electricity generation back for storage and/or disposal, in Yucca Mountain or elsewhere. The Nuclear Nonproliferation Act of 1978 makes any plan for the return of such fuel subject to stringent conditions, including submission to Congress, which has the option to reject it. Subsequently, Congress has prohibited the executive branch from even spending money to formulate or review such a plan. Despite U.S. policy against taking back spent nuclear power reactor fuel, the United States has operated an international spent fuel disposal system of sorts, taking back spent U.S.-origin research reactor fuel for disposal. This is part of the effort to reduce worldwide use of highly enriched uranium, an effort that has been successful in encouraging the conversion of most research reactors to the use of low-enriched uranium fuels. The bulk of spent highly enriched uranium fuel will be repatriated before the U.S. program ends in 2009. The United States is also working with Russia and the IAEA on a similar program involving the return to Russia of highly enriched uranium fuel and spent fuel from exported Soviet-era research reactors. Acceptance of Shared Repositories The major problem facing any international storage or acceptance of a shared repositories disposal scheme is public acceptance. If it were an easy problem, there would be a regional spent fuel repository by now, because the concept has been around for at least 25 years. However, it seems inevitable that at least in some areas of the world, regional storage sites or repositories will be built.

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0 SPENT NUCLEAR FUEL STORAGE FACILITIES There are presently 34 countries plus Taiwan that will have to dispose of spent fuel and/or high-level waste from reprocessing. It is hard to imagine 35 separate deep geological repositories or an indefinite continuation of the present situation where almost every nuclear reactor in the world constitutes a long-term spent fuel storage facility. It is particularly hard to imagine these outcomes in regions of closely grouped states, each with spent fuel from only a few nuclear power plants. These states might conclude that their environs would be better served by one storage site and/or repository rather than several. GENERAL FACTORS AFFECTING U.S. POLICY Over the past few years there have been numerous proposals for interna- tional spent fuel storage or disposal. The focus of this meeting is the possibilities presented by the new Russian legislation on the receipt of foreign spent fuel for interim storage or reprocessing. Before addressing that issue, a few remarks about general factors are in order. An Agreement for Cooperation Required Source and special nuclear material are exported from the United States pur- suant to an agreement for cooperation negotiated according to the requirements of Section 123 of the Atomic Energy Act, as amended. These requirements apply to not just exported material but also the special nuclear material produced through its use or the use of certain U.S.-exported nuclear facilities and technology. This material is referred to here as U.S.-origin nuclear material. The requirements include the following: 1. provision for a peaceful use/no explosive use guarantee, 2. application of full-scope safeguards for nonnuclear weapons states, 3. maintenance of adequate physical protection, 4. a U.S. consent right over reprocessing or enrichment of the nuclear material and alteration in form or content of any irradiated fuel containing the material, 5. a U.S. right to require return of the material to the United States under certain conditions, 6. a U.S. approval right over any storage facility for separated plutonium or highly enriched uranium, and 7. a U.S. consent over retransfer to another country. An agreement for cooperation is negotiated by the Secretary of State with the technical assistance and concurrence of the Secretary of Energy and in consulta- tion with the Nuclear Regulatory Commission. The agreement is submitted by the secretaries of State and Energy to the President, who transmits it to Congress

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0 COMMERCIAL SPENT FUEL AND HIGH-LEVEL WASTE where it must lie for a period of 90 days of continuous session, after which it can enter into force unless disapproved by both houses of Congress. While the President may waive one or more of the above requirements for an agreement, any such agreement then requires an affirmative vote of Congress. No president has ever waived any of the required provisions. The United States currently has nuclear cooperation agreements with the European Atomic Energy Community (Euratom), the IAEA, Taiwan, and 22 countries. U.S. Consent Rights Apply There is nearly 33,000 metric tons of spent fuel outside the United States that contains U.S.-origin nuclear material and consequently is subject to U.S. consent rights. Among countries included in this estimate are the European Union member states, Brazil, the Czech Republic, India, Japan, the Republic of Korea, Mexico, Switzerland, and the former Yugoslavia, as well as Taiwan. The most frequently mentioned customers for any international repository are Taiwan and Korea, as both have large quantities of spent fuel to dispose of and the funding necessary to make a repository proposal attractive to a potential host. All the spent fuel in Taiwan and much of the spent fuel in Korea are subject to U.S. consent rights, making the exercise of these rights by the United States an important consideration in any proposal for international storage or disposal of spent fuel. It is worth noting that the high-level nuclear waste that comes from the reprocess- ing of spent fuel over which U.S. consent rights existed would generally not be subject to the same consent rights. Under Section 131 of the Atomic Energy Act of 1954, as amended, U.S. consent rights over the retransfer of spent nuclear fuel are exercised according to legally established procedures and standards by the Secretary of Energy on a case-by-case basis through a process called a subsequent arrangement. In addi- tion to obtaining the consent of the Secretary of State and consulting with the Department of Defense and the Nuclear Regulatory Commission, the Secretary of Energy must make a written determination that the subsequent arrangement will not be inimical to the common defense and security. A notice of the proposed subsequent arrangement and this determination must be published in the Federal Register for 15 days before the arrangement can take effect. If the retransfer of spent fuel is for the purpose of reprocessing, the subsequent arrangement must also lie before Congress for 15 days. Section 127 of the Atomic Energy Act requires that retransfers of U.S.-origin nuclear material can only be approved to recipient states that agree to the U.S. export control requirements.

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0 SPENT NUCLEAR FUEL STORAGE FACILITIES POLICY FACTORS IMPORTANT Disposal, Not Reprocessing It is the policy of the Bush administration that the United States will continue to discourage the accumulation of separated plutonium worldwide. This policy and the requirements of the subsequent arrangement process mean that before approving new arrangements for the retransfer of any spent fuel containing U.S.- origin nuclear material, the United States would almost certainly need to be as- sured that the spent fuel was destined for eventual disposal and not reprocessing. A permanent repository need not be available at the time of the export, and long- term storage could be part of any scheme. But the scheme should also involve specific plans for, and the commitment of sufficient resources to, development of a geological repository. The United States would expect to use its consent rights to enforce the disposal, as opposed to reprocessing, of transferred spent fuel. Facilities Must be Safe and Environmentally Sound In addition to gaining assurances about the ultimate disposition of the spent fuel, the United States would need to be assured that the interim storage facili- ties and the final repository facilities were safe and environmentally sound. The technology for storage of spent fuel is well established, as demonstrated, for example, at a large number of U.S. nuclear power plants as well as away from reactor storage facilities in Canada, Russia, and Sweden. The Nuclear Regulatory Commission has concluded that spent reactor fuel could be stored safely for at least 100 years, and commercial suppliers of the necessary technology are avail- able. In any event, we would be likely to participate in the scientific evaluation of any facility storing and disposing of spent fuel containing U.S.-origin nuclear material to ensure it is constructed on an environmentally sound basis. The DOE’s recommendation for Yucca Mountain as a scientifically sound site for the disposal of nuclear wastes and the subsequent notification by the President to Congress that he considers the Yucca Mountain site to be qualified for a con- struction permit are evidence of a large body of work on geological containment of nuclear waste. The opening of the Waste Isolation Pilot Plant (WIPP) in New Mexico in 2000 marked the world’s first geological repository and a giant step forward. Sweden and Finland are also well on the way toward development of a geological repository. The United States shared its experience with both WIPP and Yucca Mountain at the joint convention’s first meeting of the parties. The United States is also making a broad range of efforts to share its experience with cooperating partners. While the events of 9/11 certainly raise concerns about the security of nuclear fuel and terrorism, DOE Secretary Spencer Abraham pointed out the benefits of safely locking away nuclear fuel forever rather than storing it at a large number of different sites.

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05 COMMERCIAL SPENT FUEL AND HIGH-LEVEL WASTE Transport Must be Safe Prior to providing consent for retransfer, the United States would further have to be assured that the material would be handled safely in transit. Sea transport of radioactive materials is routinely carried out with an exceptionally high degree of safety and security, in compliance with stringent IAEA and In- ternational Maritime Organization standards. Nevertheless, such shipments are highly controversial, and some coastal and small island states are increasingly vocal in calling for greater regulation or an outright ban. Attempts to ship through international choke points, like the Panama Canal, the Straits of Malacca, or the Bosporus and the Dardanelles, could risk attempts to pose unilateral restric- tions or even attempts at interception by protestors. Large-scale movement of nuclear material from a port to a repository, via road or rail, might prove to be a challenge for many nations’ infrastructures and can be another focal point for protests. However, the technology for the transport casks is well established, and any foreseeable incidents are not likely to pose a safety risk. Assurance of Needed Resources The requirements for safety and security already identified will need to be implemented over a long period of time. Before granting its consent to a re- transfer, the United States would want to be sure that institutional mechanisms, whether private or governmental, were in place to ensure that the safety and security requirements continue to be met over a very long period of time. In particular, these mechanisms include those for ensuring that the large amount of money that would change hands, much of it up front, was properly managed and accounted for and remained available to manage the spent fuel for the life of the disposition program. The obligations being undertaken may be longer than what a commercial entity might be able to guarantee. RUSSIAN REPOSITORY OPPORTUNITIES The United States is interested in the possibility of safe and secure storage in Russia of spent reactor fuel containing U.S.-origin nuclear material. Among the specific technical issues raised above, the DOE has already begun a cooperative program in geological repository science with Russia. This would be an excellent basis for ultimate cooperation in evaluation of a potential repository location. Transport Issues Western ports in Russia might be problematic as receiving stations for for- eign spent fuel as they require access through politically sensitive sea lanes and choke points. If spent fuel were shipped to a Pacific port, there could be concerns

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06 SPENT NUCLEAR FUEL STORAGE FACILITIES about the ability of the old trans-Siberian rail lines to sustain traffic in heavy rail-mounted casks. However, a new rail line could easily be designed for such traffic. Disposition Issue Ultimate disposition of spent fuel provides greater difficulties. While the United States requires a clear path to disposal, Russian legislation requires that spent fuel be accepted only for interim storage or reprocessing and not for dis- posal. Interim storage, particularly if it is a long interim, would ease political problems arising from the exhaustion of on-site storage capacity that could pre- maturely shut down reactors. Interim storage can also make the scientific analyses and ultimately the construction of a final repository easier, for example, in ther- mal management and materials performance/corrosion. However, the disposal of spent fuel would still require construction of an expensive geological repository, reducing the value of such interim storage. IAEA Safeguards Another issue might be a potential requirement for IAEA safeguards on some of the spent fuel transferred to Russia. There is no requirement in U.S. law for safeguards on exports or retransfers of source or special nuclear material to Russia, since it is a nuclear weapons state. Furthermore, the United States believes that the discretionary application of safeguards to spent fuel in Russia should be a low priority for the IAEA, particularly given the already inadequate resources available to meet safeguards obligations in nonnuclear weapons states. The United States also doubts that the IAEA wants to spend its resources in this way. However, some nonnuclear weapons states might wish such safeguards ap- plied to fuel they export and want it written in their own transfer agreement. The wording of the safeguards agreement applied in Taiwan may require safeguards on any spent fuel transferred from there. Iran Finally, while the concept of spent fuel storage in Russia has promise, it will not be possible for the United States to support practical steps in this direction until the problem of Russian cooperation with Iran is resolved. The United States does not authorize retransfer of nuclear material to countries to which it could not transfer nuclear material directly. Therefore, the United States and Russia must have an agreement for cooperation in force before any spent fuel with U.S.-origin nuclear material may be shipped to Russia. No such agreement is in force. The transmittal report to Congress for a proposed agreement for cooperation must include an assessment of the proliferation record of the other party. The United

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07 COMMERCIAL SPENT FUEL AND HIGH-LEVEL WASTE States would only be in a position to negotiate such an agreement once Russia addressed U.S. concerns regarding Russian-Iranian nuclear, missile, chemical, biological, and advanced conventional weapons cooperation. The Bush adminis- tration has firmly linked the storage of spent fuel containing U.S.-origin nuclear material in Russia to resolution of this concern.

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