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Should the U.S. More Tightly Control Nuclear Fuel It Makes?

One unheralded aspect of the Fukushima crisis is the fact that some of the fuel burned at the Daiichi reactors is made by U.S. companies. In 2010, Japanese nuclear operators purchased $940 million worth of nuclear fuel from U.S. manufacturers, giving American exporters 73% of the Japanese nuclear fuel market, according to U.N. trade figures. (Fuel in reactor #5 at Fukushima Daiichi was made in the United States.)

Under the 1978 Nuclear Non-Proliferation Act (NNPA), the United States has some control over the disposition of U.S.-made fuel after it is burned in reactors in foreign countries. But some say the U.S. government should reexamine its legal obligations under the law and add safety rules to the agreements countries sign when they buy U.S. fuel or reactors. Alongside the existing clout that the United States has to ensure spent fuel isn't reprocessed to make bombs, they suggest that the United States should push countries to improve safety.

Under the NNPA, the degree of control available to the United States varies from country to country.

The extent of U.S. control depends on "consent rights" agreements which are included in bilateral agreements on nuclear trade between the United States and other nations. According to Henry Sokolski of the Nonproliferation Policy Education Center in Arlington, Virginia, the law gives the United States limited "legal rights" to intervene in foreign nations' management of spent nuclear fuel. Under the law, in fact, the United States can intervene in the management of any fuel burned in a U.S.-made reactor. With 23 such agreements in place, the United States can play an active role in compelling countries such as Taiwan, South Korea, and Japan to carefully manage spent U.S.-made fuel. The U.S. agreement with Korea that governs nuclear materials including spent fuel, for example, stipulates that the United States will "consult with the Government of the Republic of Korea in the matter of health and safety." If the United States does not like the way U.S.-origin spent fuel is being recycled, it can veto that activity.

But under the NNPA, U.S. action can be triggered only by concerns that U.S.-origin spent fuel may be used for nuclear weapons production, or may be vulnerable to theft or terrorism. The law does not give the United States power to actively intervene over safety or environmental concerns. Amending the law would require Congress to tackle the thorny question of whether the United States has any right to encroach on foreign nations' sovereign control over spent nuclear fuel when issues unrelated to weapons proliferation arise. "It makes sense in the abstract," says Christopher Paine of the Natural Resources Defense Council in Washington, D.C., about the idea of amending the law.

In a recent paper, Paine promoted the idea that nations would surrender spent nuclear fuel and it would be safely stored under international control. This idea dates to 1946, when it was first proposed in a report written by a scientific panel headed by, among others, Robert Oppenheimer. The concept is actually elaborated as a possible U.S. policy goal within the NNPA, notes Leonard Weiss, the U.S. Senate staffer who is credited as the chief architect of the act. Sixty-five years later, says Weiss, "no system of inspection and material accountancy can substitute for international monopoly ownership" of spent nuclear fuel.

Even without such sweeping reforms, Lawrence Scheinman at the Monterey Institute for International Studies in Washington, D.C., thinks the United States has a lot of latitude to use the existing NNPA to tighten up safe storage of U.S.-origin spent nuclear fuel abroad. Scheinman notes that the United States will renegotiate its 30-year-old bilateral "consent rights" nuclear agreement with South Korea in 2014. Korea is anxious to find new ways to deal with its U.S.-origin spent nuclear fuel, Scheinman says, because the Korean public is unwilling to accept long-term storage. He thinks the negotiations over a new nuclear cooperation agreement with South Korea offers the United States the opportunity to engage with the Koreans on environmental safety issues. And he thinks this can be done using the NNPA as it stands: "I'm absolutely certain environment concerns will be raised," he says about the upcoming negotiations with South Korea. Scheinman says by engaging with the South Koreans on environmental safety, the United States would set a precedent for its approach to negotiating with other nations in the future, including Japan.

Sharon Squassoni of the Center for Strategic and International Studies in Washington, D.C., agrees that an amended NNPA to address safety is needed. But rather than selling nuclear fuel abroad and then attempting to police how its new owners manage it, she thinks the United States should consider leasing nuclear fuel supplies, which is what the Russians do. This might give the United States greater safety leverage, she argues, because as the owner of the fuel it would be better able to insist on safe storage.

But it would require the United States to finally decide on a long-term solution to spent nuclear fuel storage, which with the cancellation of the Yucca Mountain repository project remains a perennial political bugbear. Without a repository, she says, "it is very unlikely that the U.S. will ever take back U.S.-origin spent fuel." This assessment draws an echo from Michele Boyd, nuclear safety campaigner with Physicians for Social Responsibility in Washington, D.C. Boyd agrees with Squassoni that the United States will be on thin ice advising its nuclear fuel customers on safety abroad until it cleans up its own backyard.

At NRDC, Paine says that discussions he has initiated on broadening the NNPA and other international nuclear energy mechanisms to include safety and environmental concerns have met with fierce resistance from industry and foreign governments. "We found that when we tried to extend the discussion from nonproliferation concerns to environment and safety, everybody got their backs up," he says.

Ted Jones of the Nuclear Energy Institute, an industry group in Washington, D.C., says the U.S. Nuclear Regulatory Commission is already deeply engrossed in international nuclear safety efforts. But the best way for the United States to engage with foreign nations on bolstering safe spent fuel management is through multilateral organizations such as the U.N.'s International Atomic Energy Agency, he argues. In recent decades, the U.S. share of the growing fuel market has declined from 30% to just 10%, he notes, so the United States no longer wields the power within international nuclear safety that it did when the NNPA was written. "The idea that U.S. regulations that aren't shared by other supplier countries could be an effective influence on fuel risk is probably not a very good idea," says Smith.

The disaster in Japan indicates that the time has come for bolstered action on both the domestic and the international front, Paine believes. "In the case of Japan, it seems there was a complete safety breakdown," he says. "It raises questions about whether there should be enforceable international standards."

*This item has been corrected 30 March to reflect that comments attributed to Ted Smith of the Nuclear Energy Institute are in fact from Ted Jones.

This item has been corrected 1 April: The original article stated that Henry Sokolski said that the law gave the U.S. "extensive" legal rights over spent fuel it sold to other countries and that it could ask for fuel back if it didn't like how the fuel was being handled. The story has been updated to reflect that Sokolski said those rights were limited to the recycling of fuel. Also, while the United States can ask for fuel back, Mr. Sokolski did not say this was in reference to activity the U.S. didn't like; rather, the NNPA nations must ask the United States before they recycle fuel.