LOOKING BACK: The 1978 Nuclear Nonproliferation Act
The 1978 Nuclear Nonproliferation Act (NNPA) sought to tighten the criteria for nuclear cooperation and reshape the nuclear fuel cycle. Many of its provisions have been forgotten, but the NNPA regained notoriety this year with the approval of the U.S.-Indian nuclear cooperation agreement. The objectives of the NNPA are timeless and in no danger of being achieved soon.
The solutions proposed by the NNPA may still be necessary to ensure the long-term viability of the nuclear nonproliferation regime, particularly those related to sensitive parts of the nuclear fuel cycle-uranium enrichment and spent fuel reprocessing-that can produce fissile material either for fuel or for weapons.
Origins of the NNPA
Over the years, the NNPA has been most often associated with a critical turn in U.S. nonproliferation policy that required countries to belong to the nuclear Nonproliferation Treaty (NPT) in order to receive U.S. nuclear exports. Stung by India's 1974 nuclear test and mindful of the plans of other states outside the NPT to acquire sensitive technologies, the United States concluded that full-scope safeguards should be a prerequisite for nuclear supply. Eventually, the Nuclear Suppliers Group (NSG) adopted the same condition for supply in 1992. Although this can be viewed as a major success of the NNPA, a closer look at what it tried to achieve, however, reveals a set of far-reaching goals that are frustratingly no closer to fruition today.
When the NNPA was signed into law 30 years ago, analysts struggled to explain the wide-ranging impact of the complex bill on U.S. nuclear exports and policy. The Congressional Research Service devoted a 35-page report to explaining its provisions in clear English. A flurry of articles appeared in such high-profile venues as Foreign Affairs to decry the new restrictive measures of the NNPA and U.S. nonproliferation policy in general. Most focused on the folly of the United States in moving the goalposts in nuclear cooperation at a time when U.S. dominance in the nuclear market was waning.
Experts can argue precisely why the NNPA evolved as it did, but the context is fairly clear. In the early 1970s, technically competent states in Asia and Europe sought to reduce their dependence on the United States as virtually the sole supplier of reactors and nuclear fuel by developing their own fuel cycle capabilities. The perceived need to diversify supply only grew stronger after the 1973 oil shock, which had two effects. First, states recognized the need to shift away from oil to generate electricity. Second, general concern about fuel supplies led states with nuclear power programs to conclude that reprocessing plutonium from spent nuclear fuel would ultimately be necessary to make the most of finite uranium supplies. The oil shocks were a key impetus for states such as France and Japan, which were greatly dependent on foreign resources for energy, to invest heavily in nuclear energy.
Until 1971, the United States had supplied about 90 percent of the reactors in the western world and dominated the low-enriched uranium (LEU) fuel market through what could be described as unfair business practices-setting LEU prices artificially low (below the cost of production) and discouraging foreign enrichment ventures. A stab by the Nixon administration at encouraging some foreign enrichment plants in 1971 backfired. Europeans balked when told that they would be given access to unclassified gaseous diffusion technology, which requires enormous amounts of electricity to run, while U.S. firms would have access to more competitive, but classified, centrifuge technology.
The decisions to create both URENCO, the British-Dutch-German enrichment venture, and Eurodif, the French-run enrichment partnership, were validated by U.S. difficulties in meeting contractual obligations to supply LEU fuel just a few years later. In June 1974, the U.S. Atomic Energy Commission (AEC) "closed the books" on enrichment and made some existing contracts "conditional," as it discovered U.S. enrichment capacity would not be able to meet demand. Reportedly, the AEC even returned checks for services. One year later, reorganization of the AEC into the Nuclear Regulatory Commission and the Energy Research and Development Administration (ERDA) threw U.S. nuclear exports into a tailspin. The United States did not export any LEU for nine months while the NRC and ERDA sorted out their responsibilities and regulations.
More troubling than Europe's development of commercial fuel-cycle capabilities was the decision of these new nuclear suppliers to spread the wealth. After learning of the U.S. decision not to supply LEU, the Brazilians promptly concluded a contract with the Germans to acquire a full nuclear fuel cycle while France concluded reprocessing plant contracts with Pakistan and South Korea. The contracts were eventually abandoned after intense diplomatic lobbying by the United States. However, coupled with the ominous 1974 India nuclear test, it was clear that coordinated supplier restraints were needed.
Other factors were also critical in setting the scene for the NNPA. In the wake of the Indian test and facing pressure from Congress, which was highly engaged in those issues at that time, the Ford administration concluded that it would not continue to support spent fuel reprocessing because of concerns about proliferation. The Carter administration, entering office in 1977, took this a little further and sought to discourage allies from using plutonium as fuel in the civil fuel cycle. French, German, and Japanese allies were, unsurprisingly, very unhappy with U.S. decisions, particularly because they wanted to reprocess U.S.-origin spent fuel.
An Imperfect Instrument With Idealistic Objectives
Several precursor bills introduced before 1977 contained more stringent requirements for U.S. exports than would ultimately wind up in the NNPA. For example, one bill sought to ban foreign reprocessing of U.S.-origin spent fuel; another sought to make U.S. nuclear exports contingent on a state forgoing all enrichment and reprocessing, not dissimilar to the bilateral arrangements the United States is now pursuing with some states. A separate legislative tack was simultaneously pursued to impose sanctions on the acquisition of enrichment and reprocessing capabilities by certain states through the Symington and Glenn amendments to the Foreign Assistance Act.
Fundamentally, the NNPA sought to make the international nuclear fuel cycle a less attractive platform from which to develop nuclear weapons. The NNPA envisioned sticking to a once-through fuel cycle that would avoid using separated plutonium, or separated uranium-233 (U-233), or HEU. To realize that vision, it would be necessary to defer commercial deployment of breeder reactors, create terminal spent fuel storage facilities, and assure countries that they would have a reliable supply of LEU, through the creation of an International Nuclear Fuel Authority and an interim fuel stockpile. It would also be necessary to get serious about universal NPT compliance and better International Atomic Energy Agency (IAEA) safeguards. Supplier states would have to agree not to transfer sensitive nuclear technologies, such as uranium enrichment and spent fuel reprocessing.
The NNPA had a major impact on U.S. nuclear export controls, notably levying a requirement that recipient states have full-scope safeguards. Eventually, other NSG suppliers adopted the same prerequisite but only after the shock of Iraq's pre-1991 weapons of mass destruction transgressions. The NNPA's more far-reaching goals, including an International Nuclear Fuel Authority, a fuel bank, and multinational enrichment facilities and spent fuel repositories, have remained out of reach. None of these have been pursued with any success, yet they are virtually all on today's agenda.
In many ways, the NNPA attempted to legislate an earlier U.S. objective to internationalize the nuclear fuel cycle. Such proposals under the 1946 Baruch plan were viewed suspiciously by some countries as a way of maintaining what was then U.S. nuclear hegemony. The Atoms for Peace program of the 1950s abandoned the idea of institutional frameworks to control proliferation, opting instead to place trust in bilateral safeguards to ensure the peaceful uses of the atom. By the mid-1970s, however, it was becoming clear that perhaps the newly minted NPT needed to be shored up.
Had the United States truly been seen as a reliable supplier in the years just prior to the NNPA, a backlash against U.S. policy might not have resulted. The question today is whether the objectives of the NNPA are still worth pursuing. If so, how?
Lessons for Today
The nuclear nonproliferation regime today is under stress from several different directions. The recent crises are well known: North Korea's withdrawal from the NPT and nuclear test; Abdul Qadeer Khan's sale of sensitive uranium-enrichment technology to Iran, Libya, North Korea, and perhaps others; and Iran's violation of its NPT obligations and refusal, despite numerous UN Security Council resolutions, to suspend its uranium-enrichment program. These last two crises illustrate the fundamental difficulties in controlling what are essentially dual-use technologies, those that can be used to make fuel for power plants or for weapons.
Although the NNPA did not create the International Nuclear Fuel Cycle Evaluation project completed almost three decades ago, it provided additional impetus by requiring in Section 105 of the bill that the president initiate a re-evaluation of all aspects of the nuclear fuel cycle. One of the basic conclusions of that project was that institutional approaches to nonproliferation were needed in addition to whatever technical improvements might be possible. Most of the current proposals to reduce the risks of expanded fuel-cycle capabilities are not very different from those of 30 years ago, such as regional fuel-cycle centers and fuel banks. The urgency of promoting such institutional approaches vanished when nuclear industry growth slumped after the Three Mile Island accident in 1979 and low uranium prices made plutonium recovery relatively unattractive. These proposals are relevant once more because of renewed interest in nuclear power.
At this writing, dozens of states have announced intentions to pursue nuclear energy for the first time. Fundamentally, a major expansion of nuclear power need not pose greater proliferation risks if two basic principles are applied: there should be no growth in the amount of direct, weapons-usable fissile material nor in purely national enrichment capabilities. The implication is that civil reprocessing of spent fuel should be curtailed rather than expanded. Solutions such as fuel leasing or international spent fuel repositories could help in this regard. Iran has agreed to leasing fuel from Russia for the Bushehr plant, and Russia is open to taking back spent fuel from all its nuclear partners. The question is whether other suppliers, such as the France, Japan, and the United States, could follow suit.
Similarly, institutional solutions can help diminish the possibility of uranium-enrichment plants being used covertly to produce HEU or providing a latent capability should a state decide to withdraw from the NPT. On the supply side, the NSG has been exploring tighter supply criteria to provide additional confidence in states' intentions, and others including IAEA Director-General ElBaradei have proposed internationalizing any future facilities so that their misuse or appropriation might be made more difficult or be deterred or prevented. Criteria include having full-scope safeguards and a version of the 1997 Model Additional Protocol in force, among others. An additional protocol grants safeguards inspectors additional authority and information.
On the demand side, the situation is a little more complex because the proposals have almost all originated in the supplier states, apart from the conditions established by India in its new cooperation agreement with the United States. Supply assurances to provide incentives for states to forgo domestic enrichment programs include layered guarantees, fuel banks, and shares in existing enrichment ventures.
Some states have already begun to agree to fuel assurances. Ukraine reportedly has stepped back from its plans to develop a full fuel cycle and will join the Russian enrichment center at Angarsk. The United Arab Emirates (UAE) issued a policy declaration this year that states it will forgo uranium enrichment and spent fuel reprocessing in favor of long-term arrangements with governments and contractors primarily for economic reasons, but also because of the international concerns about sensitive fuel-cycle capabilities in developing countries. Not coincidentally, the UAE signed a nuclear cooperation with the United States in November.
India and the NNPA
The recent U.S.-Indian nuclear cooperation agreement is not the only controversial nuclear cooperation agreement to be approved by Congress in the wake of the NNPA. Others include the 1985 agreement with China, which was held up because of China's nuclear transfers to Pakistan, and the renegotiated agreements with Japan (1987) and Euratom (1995), both contentious because of the issue of U.S. consent to reprocess U.S.-origin spent fuel. Although the Chinese, Japanese, and Euratom agreements were all controversial in their day, provoking hearings and resolutions of disapproval, the Indian agreement posed an entirely different dilemma because it called into question a fundamental tenet of U.S. nonproliferation policy and law for 30 years, that the United States should cooperate only with states that have signed the NPT. More than that, however, certain elements of the agreement threaten to throw other U.S. fuel-cycle assurances into disarray.
India, in the 2005 Joint Statement and in the 123 agreement itself, required three kinds of fuel supply assurances: help in establishing a strategic reserve of fuel, a supply agreement with the IAEA, and assurances that the United States would find alternate suppliers if the United States had to cut off supply with India for any reason. India obviously desired to avoid a repetition of the 1980 U.S. cutoff in nuclear fuel to India's Tarapur reactors. That termination occurred because India failed to meet the NNPA's requirement for full-scope safeguards in non-nuclear-weapon-state recipients of U.S. nuclear exports. (India is considered a non-nuclear-weapon state under the NPT.) Although this requirement was waived by the 2006 Hyde Act, a cutoff could occur should India test another nuclear weapon. Future tests are not "grandfathered" into the U.S.-Indian 123 agreement.
Remarkably, India's Tarapur reactors never stopped operating because they lacked nuclear fuel, despite the U.S. cutoff. Other nuclear suppliers helped plug the gap: first France, then China, and now Russia. Eventually, however, India began to experience shortages in domestic uranium supply because of the 1992 NSG decision to require full-scope safeguards that resulted in operating some reactors at much lower capacities. Ironically, just at the time when the NNPA's full-scope safeguards requirements began to pinch, they were dropped.
States that are now considering fuel assurances are obviously not motivated to seek them for the same reasons as India. The bar for them is set much lower. The idea behind fuel assurances for other states is to provide incentives for them not to acquire the capacity to enrich uranium or reprocess spent fuel. Although national strategic stockpiles of fuel have not been featured prominently in proposals, an IAEA role in assuring supply and ensuring alternative suppliers have been elements of other proposals. Still, other characteristics of the U.S.-Indian 123 agreement may complicate the picture.
The first is that India insisted on "corrective measures" that could be taken if fuel supplies were cut off. Although never publicly defined, such corrective measures are thought to refer to India's removal of its indigenous reactors from safeguards to accommodate domestic, unsafeguarded fuel in the event of a cutoff of foreign fuel. Clearly, NPT non-nuclear-weapon states-parties would not have this option, but the precedent of connecting safeguards obligations to guaranteed fuel is troubling.
Second, the India 123 agreement provided, in principle, consent for India to reprocess U.S.-origin spent fuel, pursuant to negotiation of subsequent arrangements. India would need to build a new reprocessing plant for that purpose. This could place India among the small group of states that are accorded such privileges, raising the question for other states such as South Korea.
Third, the agreement also allowed, in principle, for cooperation in enrichment and reprocessing, provided that the requirements of the Hyde Act are met for engagement in a bilateral or multilateral program devoted to improving proliferation-resistant fuel cycles and an amended 123 agreement is approved. Such cooperation may never be pursued by the United States, particularly under a new administration, but its possibility raises questions about where to draw the line in restricting sensitive nuclear technologies. If the NSG is able to implement criteria on which it has been working in this area in the near term, the issue of such cooperation with India could melt away.
Revisiting the NNPA?
The successes and failures of the NNPA may be more relevant than ever as the nuclear nonproliferation community continues to grapple with the dilemmas posed by India, Iran, and a potential expansion of nuclear energy across a wide swath of states. New institutional frameworks are needed to curb enthusiasm for engaging in uranium enrichment and spent fuel reprocessing. The United States, no longer the pre-eminent nuclear supplier, must gain wide support for implementing a vision of a nuclear fuel cycle that poses fewer proliferation risks than before. Moreover, the United States needs to begin taking seriously the NNPA's call to identify alternative options to nuclear power to meet countries' energy needs, particularly low-carbon-emitting sources.
The 110th Congress passed legislation to help fund the Nuclear Threat Initiative's fuel bank, which is a positive step toward implementing some of the more far-reaching objectives of the NNPA. Another idea on the table has been to tighten congressional approval of subsequent arrangements for reprocessing by amending the Atomic Energy Act. Given how Congress failed to adequately review the U.S.-Indian nuclear cooperation agreement, it is not clear that greater authority would result in greater oversight. Perhaps the biggest impact Congress might make on other countries' fuel cycle decisions would be to overcome nuclear waste storage roadblocks in the United States and start to build support for taking back spent fuel of U.S. origin. The world cannot expect and should not desire Russia to be the sole nuclear waste repository. Such an effort could be valuable in allowing U.S. policymakers to confront the true costs of nuclear power and proliferation directly.
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