Nuclear Waste Disposal: An International Legal Perspective
Nuclear Waste Disposal
Nuclear Waste Disposal: An International Legal Perspective
Leonard S. Spector 0 1 2
Geof rey B. Shields 0 1 2
0 Thi s Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Law & Business by an authorized administrator of Northwestern University School of Law Scholarly Commons
1 Leonard S. Spector, Geoffrey B. Shields, Nuclear Waste Disposal: An International Legal Perspective , 1 Nw. J. Int'l L. & Bus. 569, 1979
2 Part of the Energy Law Commons, Environmental Law Commons, and the International Law
Follow this and additional works at: http://scholarlycommons.law.northwestern.edu/njilb Recommended Citation
Nuclear Waste Disposal:
Geoffrey B. Shields**
As the world contends with an energy shortage,the development ofal
ternativesources ofenergy hasbecome a criticalproblem.Nuclearpoweris
both an obvious and controversialalternativeto traditionalfossilfuels.'
As* Presently serving as Chief Counsel to the Subcomm. on Energy, Nuclear Proliferation, and
Federal Services of the Senate Governmental Affairs Comm.; previously served as Special
Counsel to Commissioner Victor Gilinsky of the Nuclear Regulatory Commission; member, District of
Columbia Bar; A.B., Williams College; J.D., Yale University.
** Partner, Gardner, Carton & Douglas, Chicago; previously served on the staff of the U.S.
Senate Foreign Relations Comm., Subcomm. on Multinational Corporations; member, Illinois
Bar, B.A., Harvard University; J.D., Yale University.
The authors were assisted in their research by Timothy R. Conway, a law student at
Northwestern University, and James Goldberg, a law student at the University of Chicago.
The views of the authors are their own and should not be attributed to any institution,
publication or other individual.
I For an overview of the technical and institutional challenges to safe nuclear waste disposal,
see generally D. DEESE, NUCLEAR POWER AND RADIOACTIVE WASTE (1978); K. HARMON,
INTERNATIONAL SOURCE BOOK: A COMPENDIUM OF WORLDWIDE PROGRAMS IN NUCLER ENERGY
SUPPLY AND RADIOACTIVE WASTE MANAGEMENT RESEARCH AND DEVELOPMENT (1978);
INTERsociatedwith the use ofnuclearpoweris the importantquestion of nuclear
waste disposal. In this article,Messrs. Shields andSpector discuss the
nuclearfuel cycle, bringtogether a survey ofhow countriesaroundthe world
aredealing with the question ofnuclear waste disposalboth domestically and
on an internationallevel, andmake suggestionsfora more
aggressiveinternationalregulation ofnuclear waste disposal.
The common threat posed to the economies of the United States,
Western Europe, and Japan by the monopoly power of the oil
exporting nations is one of the most deeply etched realities of the Seventies.
During 1978, imported oil accounted for 50.1% of energy consumption
in Western Europe, 72.0% in Japan, and 20.5% in the United States.2
The bulk of this oil comes from the Middle East where the OPEC oil
embargo of 1973 and the Iranian revolution of 1979 clearly
demonstrated the instability of oil supplies. Added to the political turmoil of
the Middle East is the vulnerability of its oil to interception on the sea
lanes along which oil tankers travel to the West. The strategic folly of
dependence on Middle East oil is accompanied by the detrimental
impact of such dependence on our economy and those of our chief trading
partners. Indeed, rapidly escalating oil prices, which between January
1970 and July 1979 jumped over tenfold from $1.80 to $20.00 per
barrel,3 are credited as being largely responsible for the long term decline
in the rate of growth of most of the world's economies.4
Nuclear energy can substitute for foreign oil in the production of
electricity; and, in nations lacking untapped coal or hydroelectric
resources such as Japan and those in Western Europe, it is often the only
attractive alternative to oil. At the current price of oil, it is less
expensive to produce electricity by nuclear means than by oil fueled power
plants; and in some settings nuclear generating costs are less than the
costs of coal plants.5 The Department of Energy projects that this
disparity will continue to grow.6
For these reasons, the industrialized countries of the West have
turned their hopes increasingly to the use of nuclear energy for electric
power generation.7 Until the recent slowdown in nuclear power
development, it had been widely estimated that by the mid-eighties nuclear
power would provide 20% of all electricity in the United States, Great
Britain, and Japan; 30% of the electricity in Sweden and Switzerland;
and 50% of the electricity in France and West Germany' with
additional major growth in nuclear power use projected through the end of
the century. Finland, Spain, Belgium, Italy, Brazil, India and Canada
are also launched on major nuclear power programs.9
The increasing use of nuclear power has given rise to many
difficult health, safety and strategic problems.' 0 This article deals with one
of those problems-the disposal of radioactive wastes generated during
nuclear power production.
In their efforts to obtain a measure of energy independence, the
advanced industrialized countries have failed in several important
ways to deal effectively with the long-term hazard posed by these
materials. Indeed, no country has yet developed a proven and
widelyaccepted solution to the disposal of these wastes, a failure which, along
with other factors, has caused several important set-backs of
government programs to develop nuclear power."
Austria's first nuclear power plant at Zwetendorf, for example, has
never operated. 12 It stands idle as a result of a referendum in
November 1978 in which voters acted to prevent the plant's operation because
no clear method for the disposal of its waste was in hand. 13 In Sweden,
a 1977 law prohibiting construction or operation of any new reactors
unless plans are provided for the absolutely safe disposal of their
wastes has prevented operation of two fully-constructed facilities for
Northwestern Journal of.
International Law & Business
nearly a year and delayed construction plans for a number of other
West Germany has also suffered a reactor construction moritorium
because of the lack of an acceptable nuclear waste disposal program. 5
Today, its proposed solution to the waste management problem, the
construction of a major waste repository and processing facility at
Gorleben, is threatened, because of local opposition. 6
In Japan, the shutdown of several operating nuclear power plants
was threatened when difficulties arose in obtaining U.S. approval for
the shipment of spent nuclear fuel from those facilities to processing
plants in England and France. 7 Here in the United States, at least four
states, California, Iowa, Maine, and Wisconsin, have prohibited further
construction of nuclear power plants within their respective borders
until an acceptable nuclear waste management program has been
developed by the federal government. 8 The legislatures in several other
states are scheduled to consider similar action. 19
Although no ban on the development of additional power reactors
has yet occurred in England or Canada, blue ribbon commissions in
both nations have decried the lack of permanent waste disposal
programs and demanded prompt remedial actions.2" Switzerland
narrowly averted a defacto prohibition on further reactor construction in
February 1979 when a referendum in which nuclear waste issues
figured prominently was defeated by a slim 51% margin.2 '
The disposal of nuclear wastes has thus become an important
domestic political issue in the great majority of advanced nations using
nuclear power.2 2 This universality, seen against the background of
common concerns over energy supply, provides the most compelling
reason for considering the nuclear waste issue from an international
It does something of an injustice to public concerns for the safe
disposal of nuclear waste to view the issue simply in terms of its
political manifestations. The extreme toxicity and long life of nuclear wastes
pose potentially grave health hazards unless these materials are cared
for properly. While the health- and environment-related dangers from
nuclear wastes would, in the first instance, affect the populations of the
countries in which the wastes are generated, they also have an
international component because of the risks of transnational pollution and of
the adverse environmental impacts upon global common areas, such as
the high seas and Antartica. One of the key technical problems in
permanently disposing of nuclear wastes within geologic formations, for
example, is the risk of ground water contamination, which could affect
drinking water supplies many miles from the repository site. If
repositories are located close to national borders (the proposed West German
Gorleben facility is about three miles from East Germany) the
possibility of transnational pollution is manifest.3 Pollution of the high seas is
threatened both by transportation accidents, which are increasingly
likely as more and more nations begin shipping used reactor fuel to
other countries for processing or storage, and by deliberate dumping as
a method of waste disposal. Although the 1972 London Convention on
Ocean Dumping2' bans such disposal of the most toxic nuclear wastes,
it expressly permits dumping of lower level nuclear waste.25 The
possibility of waste disposal within the sediments of the ocean floor is still
receiving consideration in a number of countries, including the United
States and Britain.2 6 In sum, along with the political impact of the
nuclear waste issue on the expanded use of nuclear power, the
international aspects of these health and safety risks must also be considered.
There is a third international dimension to nuclear wastes: the
programs of certain advanced nations to export nuclear power plants to
less developed countries. West Germany, France, Canada, and the
United States have active export programs with such nations as India,
Pakistan, Brazil, Argentina, the Philippines, Korea, Taiwan, and, until
recently, Iran.2 7 In addition to nuclear fuels and facilities, however, the
supplier countries are also exporting the problems of coping with
nuclear wastes to nations which may well lack the technical expertise and
financial resources to develop sound indigenous nuclear waste disposal
programs. Some less developed countries (LDC's) importing nuclear
technology, moreover, appear to be exercising lower safety standards
than the supplier countries in the building and operation of nuclear
power plants and in the intermediate storage of nuclear wastes.28
These problems suggest that LDC's may be more likely than developed
countries to have safety problems in their permanent disposal of
None of the supplier countries, including the United States,
address the subject of nuclear wastes in their export agreements with
recipient countries, either to urge that these materials be disposed of
safely or to offer specific technical assistance in achieving this result.2 9
Wastes generated in recipient countries can affect not only the
particular recipient, involved, but also neighboring nations and global
common areas, compounding the potential problems nuclear export
programs may engender in this regard.
Finally, the unique chemical and physical conditions which give
rise to nuclear reactor wastes mean that the issue of disposing of these
wastes is intimately bound up with the question of nuclear weapons
proliferation.3 ° In the course of reactor operation, plutonium is created
in the irradiated nuclear fuel.3' Plutonium can serve as an important
indigenously-produced reactor fuel, but, unlike the uranium fuels now
used in power reactors, it is also a crucial component in the
manufacture of nuclear weapons.32 At present, those nations eager to utilize
plutonium's energy potential and those nations which fear that
widescale use of plutonium will lead to nuclear weapons proliferation
are engaged in a major international debate over whether plutonium
should be extracted from used nuclear fuel.33 The outcome of this
debate in particular nations will have a major impact on their nuclear
waste disposal programs, determining such basic questions as what
materials will be considered to be waste and whether construction of
major facilities for separating plutonium will be needed.34
Making this matter still more complicated is that for the many
nations which have imported nuclear fuels from the U.S.-including
Japan, Sweden, Switzerland, Spain, and several developing
countriesthe decision on whether to extract plutonium from the used fuel is
subject to prior U.S. approval.35 Since the U.S. is trying to discourage
plutonium separation in order to curb the spread of nuclear weapons,
while most of the nations subject to the U.S. veto have long planned to
recover and use this material as a reactor fuel, the waste management
plans of these nations are presently subject to major uncertainties.
Non-proliferation concerns are thus a central issue to be considered
along with worldwide reliance on nuclear power, global pollution, and
nuclear supplier/recipient relations in assessing the international
dimensions of the nuclear waste problem.
This article presents a summary of the domestic waste disposal
programs of nuclear power producing countries. It suggests that no
country in the world has perfected the technology of waste disposal nor
built even a demonstration facility for the permanent disposal of the
most toxic of these radioactive materials. It then discusses the efforts of
the multilateral institutions, demonstrating that they have been
ade30 For a discussion of the interrelationship between the nuclear weapons proliferation
question and the waste disposal question, see text accompanying notes 91-97, 191, 276-89, 293-305
31 See notes 43-47 and 58 and accompanying text infra.
32 FoRD-MrrRE STUDY, supranote 1, at ch. 9.
33 See text accompanying notes 91-97 and 115-92 infra.
34 Benjamin, Carter'rNuclearPolicy Wins Few Converts Abroad,Wash. Post, Dec. 6, 1978, at
A10, col. 1; Benjamin, PlutoniumReprocessing: The Step the U.S. is Most Eagerto Block, Wash.
Post, Dec. 5, 1978, at A16, col. 1; Benjamin, Taiwan'sNuclearPlansConcern U.S. Officials, Wash.
Post, Dec. 20, 1978, at A21, col. 2.
35 See text accompanying notes 191, 276-89, and 293-305 infra.
quate for the exchange of information on waste disposal, but have been
unable to regulate disposal of the most hazardous radioactive wastes or
even to propound minimum disposal standards. Next, the practices of
those free world countries which supply nuclear fuel and equipment
are analyzed with respect to the nuclear wastes generated from their
exports in recipient countries. In that section the authors indicate that
exporters have largely failed to address the matter, although a number
of avenues for exporter initiatives appear to be available. Fourth,
international treaties which deal with radioactive wastes or related
nuclear energy or environmental issues will be reviewed. In this section
the authors note that although there has been no accord which deals
with the overall nuclear waste disposal problem, existing treaties afford
some useful safeguards as well as suggest that a multilateral accord on
nuclear waste disposal might be widely adopted. Finally, the authors
conclude by suggesting a number of ways in which an international
consensus on safe and effective means of nuclear waste disposal can be
THE PRODUCTION AND CHARACTERISTICS OF NUCLEAR WASTES
Although a variety of radioactive waste materials are produced at
various stages of the fuel cycle associated with nuclear electric power
production, this article is concerned specifically with the radiotoxic
byproducts produced in the nuclear fuel itself during the operation of
nuclear power reactors. These wastes, because of their intense
radioactivity and exceptionally long life, have become the principal
focus of public concerns and political debate regarding nuclear wastes
around the globe.3 6
36 These wastes will hereinafter be referred to as "post-fission wastes."
As explained more fully below at the text accompanying notes 43-65 infra, irradiated nuclear
fuel contains a variety of unwanted constituents which, because of their long lifespan and high
radioactivity, require long-term isolation from the environment. If it were decided not to separate
these constituents from irradiated reactor fuel, such fuel, itself, would be treated as waste material
and would require long-term sequestration. "Post-fission waste" is used in this article as a
convenient short-hand phrase to include the material which would need permanent disposal under both
alternatives: the unwanted constituents of irradiated fuel, if separated (together with equipment
contaminated by such constituents in the course of separating them), and such fuel itself where it
is considered to be a waste product. Unifying these apparently diverse wastes under a single
rubric also serves to highlight their essential similarity. The wastes in either case pose roughly
comparable public health hazards and would require comparable long-term disposal measures.
Thus, the nuclear fission process confronts the nuclear power user with what is basically the same
Numerous other radioactive wastes are generated in the course of the nuclear fuel cycle in
addition to those indicated in the preceeding paragraph. These include the residues from the
processing of uranium ore, known as uranium mill tailings, which are hazardous because of their
Nuclear power reactors produce energy through the controlled
splitting, or fission, of atoms of uranium.37 In simplified terms, fission
occurs when these atoms, some of which are inherently unstable, are
struck by neutrons, spontaneously emitted by certain nuclear fuel
isotopes.38 Upon splitting apart, the fissioned atoms give off energy in the
form of heat and emit additional neutrons, which strike other unstable
fuel atoms in a continuing, heat generating chain reaction whose rate
can be controlled by various devices in the reactor. The heat produced
is used to turn water into steam which drives a turbine producing
The most widely built reactor type is the "light water" reactor
(LWR), the type which strongly predominates in the United States,
Western Europe, Japan, and in a significant number of developing
countries.0 LWR's are fueled with enriched uranium; i.e., uranium in
radium and radon content; the liquid and gaseous effluents of normal nuclear power plant
operation which occur as radioactive substances migrate through small fuel rod defects into reactor
cooling water;, "low lever' wastes, which are clothing and equipment contaminated in the course
of reactor operation and other nuclear fuel cycle activities with modest amounts of radioactive
material; and disused nuclear facilities, themselves, which require decontamination and
decommissioning. SeegenerallyFoRD-MrrRE STUDY, supranote 1, at ch. 8; M. WILLRICH & R. LESTER,
note I supra, IRG REPORT, note I supra.
37 Virtually all nuclear power reactors in operation today use uranium fuel. As discussed in
the text at note 58 infra, plutonium may serve as a substitute for fissionable uranium in some
applications; mixed uranium-plutonium fuels would be used in breeder reactors which are now
38 An isotope is one of several different species of a chemical element, which is distinguished
from other isotopes of the same element by variations in the number of neutrons in the atomic
nucleus, but indistinguishable by chemical means. FoRD-MITRE STUDY, supra note 1, at 409.
Uranium-235 is the fissionable isotope of uranium of importance to nuclear power production.
Uranium-233, another fissionable isotope of uranium, may play an important role in the nuclear
fuel cycles associated with certain experimental reactors.
39 For a brief introduction to nuclear power reactor operation and technology, see
FoRDMrrRE STUDY, supra note 1, at appendix.
40 The following table indicates the number of operating LWR's in each of the nations listed
and their total generating capacity in megawatts (one megawatt equals 1,000,000 watts):
which the readily fissionable isotope, uranium-235, has been artificially
concentrated from its naturally occurring rate of .7%to a concentration
of between 2 and 4 percent.4 1 The increased uranium-235 permits the
chain reaction to be initiated and sustained when the enriched uranium
fuel is submerged in normal, or "light," water. LWR fuel consists of
pellets of enriched uranium encased in closed, stainless steel or
zirconium alloy tubes about one centimeter in diameter and between 380
and 410 centimeters long, which are assembled into bundles (fuel
assemblies) in a square array, with the rods spaced apart and supported
World List of NuclearPowerPlants,22 NUCLEAR NEWS 59-64 (Feb. 1979)
(figures as of Dec. 31,
. For LWR's in use in less developed countries, see note 179 infra. The United Kingdom
has 32 power reactors in operation with a total capacity of 7706 megawatts and 6 more under
construction (3700 megawatts). All are gas-cooled reactors of British design as opposed to LWR's.
The second principal type of nuclear power reactor in use today is the "heavy water reactor"
(HWR). Because HWR's immerse their nuclear fuel in deuterium-oxide----"heavy water"-which
permits more efficient use of the neutrons emitted by the uranium fuel than does normal "light"
water, HWR's do not require fuel in which the fissionable isotope of uranium has been
concentrated, or enriched; instead these reactors operate on natural uranium fuel. Canada manufactures
the HWR which is available commercially today, known as the "CANDU" reactor for
"Canadian-deuterium-uranium." FORD-MITRE STUDY, supranote 36, at appendix. The following table
shows the deployment of CANDU and other HWR's currently:
World List ofNuclear PowerPlants, supra.
Unless otherwise indicated, the figures used in the text to describe waste production in
nuclear fuel refer to light water reactors. Figures on accumulations of used nuclear fuel include fuel
from all types of reactors. Although the characteristics of irradiated HWR fuel differ in certain
respects from those of irradiated LWR fuel, these differences do not alter the general
considerations presented in this paper. See INTERAGENCY REVIEW GROUP ON NUCLEAR WASTE
MANAGEMENT, DRAFT SUBGROUP REPORT ON ALTERNATIVE TECHNOLOGY STRATEGIES FOR THE
ISOLATION OF NUCLEAR WASTE 3 (TID-28818) (Oct. 1978) [hereinafter cited as IRG SUBGROUP
41 U.S. DEP'T OF ENERGY, DRAFT ENVIRONMENTAL IMPACT STATEMENT ON THE STORAGE
OF U.S. SPENT POWER REACTOR FUEL 11-2 (DOE/EIS-0015-D) (Aug. 1978) (Supp.
DOE/EIS0015-D) (Dec. 1978) [hereinafter cited as DOE DOMESTIC SPENT FUEL STORAGE DRAFT EIS].
by grid structures and end pieces. 42
In the course of the nuclear chain reaction, uranium atoms which
are fissioned break apart into smaller, lighter, and usually highly
radioactive 4 3 isotopes, such as strontium-90, cesium-137, and iodine-131;
these are known as "fission products."' Some neutrons in the reactor,
however, rather than splitting nuclear fuel atoms, are absorbed by
them, producing heavier isotopes than those found in the fuel initially.
These new isotopes either decay or absorb another neutron and, in
turn, fission or transmute so that through these complex processes, a
spectrum of heavy isotopes45 is eventually created in the nuclear fuel.
Virtually all of these heavy atoms are also radioactive and, in addition,
have extremely long half-lives. Their radioactive nature endures for
many thousands of years, with some, such as neptunium-237, enduring
for millions of years.46 In contrast, the vast majority of fission products
have shorter half-lives, losing their radiotoxicity in 500 to 1000 years.47
When nuclear fuel can no longer sustain a nuclear chain reaction
at economic power levels, it is considered to be spent and is removed
42 1 U.S. NUCLEAR REGULATORY COMMISSION, FINAL GENERIC ENVIRONMENTAL IMPACT
STATEMENT ON HANDLING AND STORAGE OF SPENT LIGHT WATER POWER REACTOR FUEL 2-1
(NUREG-0575) (August 1979).
43 Radioactivity is the emission of energy in the form of electromagnetic radiation, such as
gamma rays, or in the form of high speed subatomic particles, including alpha particles (the nuclei
of helium), beta particles (electrons) and neutrons. Nuclei in radioactive materials are unstable
and emit this energy spontaneously;, in so doing, the nuclei are transmuted, or "decay", into other
nuclei which, themselves, may or may not be radioactive. Every radioactive nucleus eventually
decays into a stable nucleus through a chain of such transmutations, with the length of the chain
and the duration of each transmutation in the chain varying according to the particular
radioactive nucleus involved. The period needed for a given type of radioactive nucleus (or radioisotope)
to decay into its next form is measured in terms of the half-life of that radioisotope, that is, the
time necessary for half of a sample of that radioisotope to decay into its next phase on the chain.
M. WILLRICH & R. LESTER, supra note I, at 1-4.
44 FORD-MITRE STUDY, supra note 1, at 246.
45 Heavy isotopes are generally considered to be those with atomic weights (the total of
protons and neutrons in the atomic nucleus) greater than that of lead. Those heavy elements with
atomic weights which are also greater than uranium's are known as the "transuranic" elements,
including neptunium, plutonium, americium, and curium, all of which are found in spent fuel.
IRG SUBGROUP REPORT, supranote 40, at app. A, 2.
46 For a listing of the half-lives of the isotopes referred to in the preceding note, including
neptunium-237, see M. WILLRICH & R. LESTER, supra note 1, at 3.
47 DOE COMMERCIAL WASTE MANAGEMENT DRAFT EIS, supra note 1, at 1.9 (500 years);
FORD-MITRE STUDY, supranote 1,at 257 (700 years); IRG SUBGROUP REPORT, supranote 40, at
16 (1000 years); Hearingson Nuclear Waste ManagementBefore the Senate Subcomm on Energy,
Nuclear Proiferation,and FederalServices ofthe GovernmentalAffairs Comm, 95th Cong., 2d
Sess. 80 (1978) (statement of Dr. Charles L. Hebel) (600 years) [complete hearings hereinafter
cited as Glenn 1978 Hearings]; Bredehoeft, GeologicalDisposalofHigh-LevelRadioactive Wastes:
Earth-SciencePerspective,U.S. GEOLOGICAL SURVEY CIRCULAR No. 779 (1978) (several hundred
years) [hereinafter cited as U.S.G.S. STUDY]; Hearingson Nuclear Waste ManagementBefore the
House Subcomm on FossilandNuclearEnergy Research, Development, andDemonstrationof/he
from the reactor. Typically, one quarter to one third of the fuel in a
LWR is replaced during an annual reload, resulting in the discharge of
about 30 tons of spent fuel, which is initially stored in water-filled pools
adjacent to the reactor." At this point, the highly radioactive spent
fuel contains virtually all of the fission products produced during
reactor operation, all the heavy isotopes built up by neutron absorption that
have not, themselves, fissioned, and a significant percentage of the
uranium originally charged into the reactor. By weight, the respective
proportions of these three components in spent fuel are approximately 3%,
1%, and 96%."9
If radiation from spent fuel or any other source reaches the tissues
of the human body, the result, depending on the intensity of the dose of
radiation received, is cell damage or destruction.50 This in turn can
lead to the growth of cancerous cells, damage to chromosomes causing
genetic defects in future generations, or, if the radiation is sufficient,
tions to the rule, remaining radioactive for many thousands of years. FORD-MITRE STUDY, supra
note 1, at 243.
48 The following table shows current estimates of existing quantities of spent fuel in the
United States and abroad, with projections of future amounts through the year 2000.
The volume of spent nuclear fuel is projected to increase very rapidly in the U.S. and abroad
through the end of the century. It seems likely that a rapid expansion will continue beyond the
year 2000 as well.
a Based on a nuclear growth consistent with National Energy Plan.
b Free-world only.
c Metric tons of heavy metal.
d Thousands of cubic feet.
IRG REPORT, supra note 1, at D-28.
49 See IRG SUBGROUP REPORT, supra note 40, at app. A, 3-4.
50 See FORD-MITRE STUDY, supranote I, at ch. 5. This chapter provides a detailed but
readily comprehended explanation of the various types of radiation hazard posed by spent fuel.
acute illness and death."1 Depending on the type of radioactive isotope
involved, the dangers posed to man will vary. Generally speaking, the
radioactive fission products found in spent fuel emit what is known as
beta or gamma radiation. Such radiation is highly penetrating,
requiring several millimeters of lead or other heavy shielding to reduce its
intensity appreciably. 2 In contrast, the heavy transuranic elements in
spent fuel, formed from neutron absorption, emit alpha radiation.
Alpha radiation has very little penetrating force and can be stopped by an
inch of air or by the outside layer of human skin. 3 If, however, alpha
emitting radioisotopes lodge in sensitive parts of the body, such as the
lungs, through inhalation or through ingestion, they can cause
considerable damage. 4 In spent fuel, the presence of high amounts of
penetrating gamma and beta radiation from the fission products make direct
exposure to the fuel extremely dangerous, requiring that it be heavily
shielded. At reactor sites, it is kept deeply submerged in water-filled
pools, with the water providing such shielding. When it is transported
off-site, it must be placed in massive metal cannisters weighing some 70
to 100 tons. Even as the beta radioactivity in spent fuel diminishes-it
approaches background levels in 500 to 1000 years-the fuel remains
extremely hazardous because of the risk that the longer-lived
alphaemitting heavy elements might enter the biosphere and be inhaled or
ingested by man.5 6 Alpha-emitting radioactivity will continue at high
levels in spent fuel for over 100,000 years.5 7
Because spent fuel contains potentially valuable quantities of both
unused uranium and plutonium, a readily fissionable material which
can serve as a substitute fuel in LWR's or as the fuel for future breeder
reactors, it has long been assumed that spent fuel would undergo
chemical "reprocessing" to recover these fuel resources.58 In reprocessing,
spent fuel rods are chopped into small pieces and then dissolved in
nitric acid. The plutonium and uranium are chemically separated from
this solution, leaving behind the unwanted fission products, and all of
the heavy elements (including about 0.5% of the originally present
plutonium). Following the reprocessing stage, this residue, termed "liquid
high-level waste," must be stored and, ultimately, disposed of in a
manner that will not endanger the public. Typically, reprocessing programs
have contemplated an initial period of storage of these liquid wastes in
steel tanks at the reprocessing plant site, followed by solidification of
this material in glass or another enduring substance, and, finally,
emplacement of the solidified high-level waste in cavities mined in stable
geologic formations.59 Here the waste would remain until it had
decayed to innocuous levels, a period usually measured in millenia
because of the long-term hazard posed by the heavy alpha-emitting
elements.60 Although the separated plutonium would not require
disposal since it would be reused as a reactor fuel and, in effect, be
"burned up," the reprocessing itself and the subsequent fabrication of
plutonium bearing fuels results in the production of waste materials
heavily contaminated with plutonium. These "transuranic wastes," as
they are known, because of their long-lived alpha radioactivity, require
isolation from the environment for periods similar to those necessary
SION REPORT, supra note 1, at 80-81); NUCLEAR ENERGY AGENCY GROUP OF EXPERTS,
OBJECTIVES, CONCEPTS AND STRATEGIES FOR THE MANAGEMENT OF RADIOACTIVE WASTE ARISING
FROM NUCLEAR POWER PROGRAMMES 66, 69 (Sept. 1977) [hereinafter cited as NEA GROUP
59 Glassification, or vitrification, as a means ofsolidifying high-level waste is being pursued by
Germany, France, India, the U.S.S.R., the U.K., and the United States.
Some notion of the overall toxicity of post-reprocessing high-level waste can be obtained
from the estimate that by the year 2000, dilution of accumulated U.S. high-level wastes (about 60
percent or more would be from civilian power applications) to safe levels would require almost
twice the volume of fresh water in the world's lakes, rivers, ground water, and glaciers. U.S.G.S.
STUDY, supranote 47, at 2. Another commentator has noted that the wastes produced from just
one year of U.S. nuclear power production contain the potential, if ingested, for producing
millions to billions of cancers; the possibility of such wholesale ingestion is, however, exceedingly
remote. Id (citing COHEN, The DisposalofRadioactive Wartesfrom FissionReactors,236
SCIENTIFIC AM. 28 (1977)).
60 See, e.g., DOE COMMERCIAL WASTE DRAFT EIS,'note I supra;FORD-MITRE STUDY, supra
note 1, at 243, 254; U.S. ENVIRONMENTAL PROTECTION AGENCY, STATE OF GEOLOGICAL
KNOWLEDGE REGARDING POTENTIAL TRANSPORT OF HIGH LEVEL RADIOACTIVE WASTE FROM
DEEP CONTINENTAL REPOSITORIES (EPA/520/4-78-004) (1978) [hereinafter cited as EPA STUDY];
U.S.G.S. STUDY, note 47 supra- Glenn 1978 Hearings,note 47 supra.
Current U.S. conceptualizations of a geologic repository envision that such facilities would be
2000 acres in size and located approximately 1500 feet below the surface. By the year 2000,
accumulated wastes would require constructions of 2 to 5 such facilities. For a detailed discussion of
repository design, see DOE COMMERCIAL WASTE MANAGEMENT DRAFT EIS, supra note 1, at
3.1.104. See also IRG REPORT, supra note 1, at 12.
for high-level wastes.
In the last several years, U.S. concerns over the possible misuse of
separated plutonium, which is one of the two fissionable materials from
which atomic weapons can be made, have led the United States to
promote the concept of direct permanent disposal of spent fuel itself,
without the intermediate step of reprocessing.62 Under this alternative,
after a period of interim storage at the reactor site or at an
"away-fromreactor" surface storage facility, the spent fuel would be specially
packaged in metal cannisters to protect against future radiation leakage and
would then be emplaced in a permanent repository similar to that
envisioned for the disposal of post-reprocessing, high-level waste.63
As may readily be seen, unlike the permanent disposal of this
latter material, direct disposal of spent fuel entails the permanent
emplacement of all plutonium originally discharged from the reactor.
This means that once the fission products in the spent fuel have
decayed to safe levels in 500 to 1000 years, considerably greater quantities
of long-lived alpha-emitting materials would remain in the repository
than in the case of post-reprocessing high-level wastes, necessitating
special care in repository design.64 Overall, however, the challenge of
disposing of spent fuel directly is considered to be roughly comparable
to that of disposing of post-reprocessing high-level waste and the
attendant transuranic contaminated waste from reprocessing and
plutonium fuel fabrication. 65 The term "post-fission" is being used in this
61 See, eg., IRG REPORT, supranote 1, at 38.
62 See text accompanying notes 91-99 infra.
63 For a general analysis of this alternative, see DOE COMMERCIAL WASTE MANAGEMENT
DRAFT EIS, note 1supra.
64 McCormack 1978 Hearings,supra note 47, at 5, 11 (testimony of J. Edward Howard).
65 See FoRD-MrrRE STUDY, supranote 1,at 254; IRG REPORT, supranote 1,at 73; Glenn 1978
Hearings,supranote 47, at 80; MeCormack 1978 Hearings,supranote 47, at 5, 11. But see NEA
GROUP REPORT, supra note 58, at 66-67. It may be noted, for example, that when spent reactor
fuel containing recycled plutonium from a previous round of reprocessing is, itself, reprocessed,
the resulting high-level waste contains higher concentrations of long-lived alpha-emitting isotopes
than did the first "generation" of high-level waste. This means that over repeated cycles of
reprocessing the difference in the long-term hazard posed by high-level waste and spent fuel is
diminished, notwithstanding the fact that most of the plutonium originally present in each
generation of spent fuel has been removed. See FORD-MITRE STUDY, supra note 1, at 248.
It is often argued that because the overall volume of solidified post-reprocessing high-level
waste is considerably smaller than the volume of the spent fuel from which it is extracted, the
reprocessing of spent fuel greatly reduces the scale of permanent disposal repository requirements
in comparison to the alternative of direct disposal of spent fuel. The higher heat per unit volume
emitted by the radioactivity in solidified high-level waste (which is highly concentrated), however,
necessitates that containers of this material be more widely spaced in a permanent repository than
containers holding spent fuel. In addition, the production of high-level waste by definition
requires reprocessing which inevitably entails the generation of significant volumes of transuranic
contaminated wastes, wastes which themselves need permanent disposal comparable to that
rearticle to refer collectively to all of these wastes requiring long-term
high inherent toxicity
wastes and their
mean that programs for protecting the public
from the long-term
hazard they pose demand high levels of scientific
understanding and technological competence.6 6 It is widely accepted,
for example, that because the hazard of post-fission wastes will endure
over time periods which will beggar the life span of human institutions,
disposal programs must be devised
which will provide a high degree of
protection for future generations
monitoring of waste repositories.6 7
without requiring active managing or
This means that the siting,
designing, and construction of waste repositories and the development of
waste solidification and packaging technologies require great care so as
to take into account a wide range of eventualities which might result in
loss of isolation, including floods, vulcanism, glaciation, changes in sea
and water table levels, and inadvertant intrusion by man as a result of
mining or resource exploration.6 8
quired for high-level waste. As a result of these and other factors, total repository acreage
requirements for a nuclear fuel cycle based on reprocessing are of the same general magnitude as for a
nuclear fuel cycle based on direct disposal of spent fuel. See DOE COMMERCIAL WASTE
MANAGEMENT DRAFT EIS, supra note 1, at 1.10.
66 See generally IRG SUBGROUP REPORT, supra note 40, at app. A; EPA STUDY, note 60
67 See, e.g., DOE COMMERCIAL WASTE MANAGEMENT DRAFT EIS, supra note I, at 3.1.64.
68 Id. at 3.1.69. The following possible actions were listed as being one which might disrupt a
Potential Disruptive Phenomena
for Waste Isolation Repositories
Of perhaps greatest concern, however, is that underground water
might enter the repository, leach radioactive substances from emplaced
post-fission wastes, and transport these substances to the human
environment.6 9 Although in the case of an actual repository many factors,
such as slow leaching and underground water flow rates, could be
expected to reduce the overall danger to the public from such a breach of
repository integrity, one "worst case" analysis of such an event
indicates the possibility (albeit remote) of up to 60,000 deaths or serious
genetic defects occurring over a 50-year period following such a breach
and suggests that persons living up to two hundred miles from the
repository could be affected.7"
Notwithstanding these challenges, it is widely believed that
permanent isolation of post-fission wastes in mined repositories is
scientifically and technologically feasible and that a properly designed waste
disposal program will expose the public to insignificant residual risks.7
Recent studies of the problem, however, have stressed that a number of
Perturbation of Ground
major gaps still remain in the current knowledge of repository behavior
and have called for expansion of waste management research and
development programs.7" Many of these studies have also emphasized
the failure of governmental efforts to address the problem of
postfission waste disposal in a comprehensive and timely fashion. 3 In sum,
a consensus appears to have emerged that post-fission wastes pose a
potentially grave public health hazard for this and many future
generations, but that the hazard can probably be managed if scientifically
rigorous programs are diligently and carefully pursued. This consensus,
however, appears to assume implicitly that adequate technical and
financial resources will be made available by government or industry to
tackle the job. This assumption may not always be warranted,
especially in developing nations where such resources are often in short
CURRENT PROGRAMS FOR THE DISPOSAL OF POST-FISSION NUCLEAR
This section surveys national and multilateral efforts to address the
challenge of safely and permanently disposing of post-fission wastes.
Although the problem of nuclear waste management confronts every
country which has a nuclear generating capacity, approaches vary
widely. Several of the developed nations are actively exploring waste
management alternatives through private efforts or through direct
government action.7 4 Multilateral efforts are being made as well, through
the Organization for Economic Cooperation and Development, the
International Atomic Energy Agency, and other multilateral
institutions. 75 The programs which have reached some degree of
sophistication are described briefly below.
Post-Fission Waste DisposalActivities in the United States. Spent
fuel from power reactors in the United States is currently stored in
water-cooled basins at reactor sites around the country. 76 At the
present time, however, the United States government has not adopted
definitive plans for the subsequent disposition of this material.77
Although there appears to be a growing consensus that the ultimate
goal of the U.S. post-fission waste disposal program for the next several
decades should be the development of mined geologic repositories for
the permanent sequestration of these substances, 78 crucial questions
concerning the intermediate steps in the program remain unresolved,
including whether and when spent fuel should be reprocessed,7 9
whether centralized, government-owned facilities for interim spent fuel
storage are needed," and how repository site selection should
Historically, from the start of the U.S. civilian nuclear program in
the mid-1950's through 1974, responsibility for the U.S. post-fission
waste disposal program lay with the Atomic Energy Commission."2
The AEC program was based on the assumption that the electrical
utility companies operating nuclear power stations would have their spent
nuclear fuel reprocessed by other private, commercial entities, with the
REPORT, supranote 1, at D-25. As of mid-1979, 70 nuclear power reactors were licensed to
operate in the United States (two of these, the Indian Point I facility and the Three Mile Island Unit 2
facility, will not operate for an indefinite period of time, however). The 70 units had a total
capacity of 51,000 megawatts (electric). Additional reactors with a combined capacity of 100,000
megawatts had received construction permits. Telephone communication with the Nuclear
Regulatory Commission Office of Congressional Affairs (Sept. 14, 1979). Spent fuel accumulations at
the end of 1979 were estimated to be approximately 5700 metric tons. (A metric ton is
approximately 2200 pounds.) DOE DOMESTIC SPENT FUEL STORAGE DRAFT EIS, supra note 41, at 11-7;
IRG REPORT, supranote 1, at D-28. With the exception of approximately 300-350 metric tons of
spent fuel stored at a never-opened reprocessing facility at Morris, Ill., and another 165 metric
tons stored at a second, no longer operating, reprocessing plant at West Valley, N.Y., all spent fuel
from U.S. nuclear power reactors is stored in water-filled pools at reactor sites. DOE DOMESTIC
SPENT FUEL STORAGE DRAFT EIS, supranote 41, at 11-12; U.S. GENERAL ACCOUNTING OFFICE,
FEDERAL FACILITIES FOR STORING SPENT NUCLEAR FUEL-ARE THEY NEEDED? i, 13-15
(EMD79-82) (June 27, 1979). No facilities for the reprocessing of commercial nuclear power reactor fuel
are now operating in the United States.
77 See, e.g., DOE COMMERCIAL WASTE MANAGEMENT DRAFT EIS, note 1 supra.
78 See, e.g., id
79 See text accompanying notes 62-63 supraand 95-97 infra.
80 See text accompanying notes 98-103 infra.
81 See text accompanying notes 106-08 infra.
82 For a brief review of the Atomic Energy Commission's programs for radioactive waste
management, see IRG REPORT, supra note I, at 2-5; U.S DEP'T OF ENERGY, DRAFT
ENVIRONMENTAL IMPACT STATEMENT ON WASTE ISOLATION PILOT PLANT 2-I to 2-12, (DOE/EIS-0026-D
Apr. 1979) [hereinafter cited as DOE WIPP DRAFT EIS]; U.S. DEP'T OF ENERGY, REPORT OF
TASK FORCE FOR REVIEW OF NUCLEAR WASTE MANAGEMENT 47 (DOE-ER-0004/D) (Feb. 1978
draft) (no final version of this document was prepared as the responsibilities of the DOE task force
were assigned to the Interagency Review Group on Nuclear Waste Management); U.S. GENERAL
ACCOUNTING OFFICE, THE NATION'S NUCLEAR WASTE-PROPOSALS FOR ORGANIZATION AND
SITING 3-5 -(EMD-79-77) (June
); M. WILLRICH & R. LESTER, supra note 1, at 13-18;
Glenn 1978 Hearings,supra note 47, at 332-35.
ogy exports for which the IAEA serves as intermediary. 18 Under the
terms of the IAEA Statute, the Agency, at the request of the
appropriate parties, may assist any member nation toward the peaceful uses of
atomic energy319 and "may arrange for the supplying of any materials,
services, equipment, and facilities necessary for the project by one or
more members or may itself undertake to provide any or all of these
directly ...."I" For all such agency projects, Article XII of the
Statute goes on to mandate that the agency's health and safety standards32'
shall be applied, a requirement expressly included in the Agency's
agreements for specific projects with project recipients.3 23 General
procedures for applying these standards to agency projects are today
embodied in the Agency's Information Circular 18, revision 1 (1976) (the
Circular), with the standards themselves contained in detailed IAEA
sion of reprocessing services does not, as noted above, encompass permanent disposal of the
resulting high-level waste.
West German nuclear exports, in contrast, are subject to statutory controls. These controls,
however, provide that only the "reliability" of the export recipient country and the impacts of a
proposed export on West German security and on that nation's international obligations in the
field of nuclear energy need be considered in authorizing exports. Atomic Energy Statute of 1959,
reprintedin 18 NUCLEAR L. BULL., Supp.
Similarly, Canada does not take into account in approving nuclear exports how post-fission
wastes from those exports will be handled by the recipient nation, according to Canadian officials.
Telephone communication with R.W. Blackburn, Secretary, (Canadian) Atomic Energy Control
Board (April 27, 1979).
318 Statute of the International Atomic Energy Agency, art. III (A)(1), Oct. 26, 1956, 8 U.S.T.
1093, T.I.A.S. No. 3873.
319 Id. at art. XI(A).
320 Id. at art. XI(C).
321 Id. at art. III(A)(6).
322 Id. at art. XII(2). See also id, art. XI (E)(3), providing that before approving any Agency
project the IAEA Board of Governors shall give due consideration to, interalia, "the adequacy of
proposed health and safety standards for handling and storing materials and for operating
323 Specific projects are the subject of individual "project agreements" with recipient nations
IAEA Statute, supra note 193, at art. XI(F). See, e.g., Yugoslavia-IAEA project agreement,
Agreement for Assistance by the Agency in Establishing a Nuclear Power Facility, June 14, 1974,
IAEA-Yugoslavia, IAEA INFCIRC/213 Part II (Nov.
). Where a supplier other than the
Agency itself is involved, the supplier's participation may be set forth in a separate agreement
between the supplier and the Agency. See, e.g., US-IAEA Supply Agreement Regarding
Yugoslavia Project, Agreement for the Supply of Uranium Enrichment Services for a Nuclear Power
Facility in the Socialist Federative Republic of Yugoslavia, June 14, 1974, IAEA INFCIRC/213
Part I. Or, the supplier's role may be reflected in a trilateral accord including the participation of
the recipient, as well. See, e.g., Agreement for the Transfer of a Training Reactor and Enriched
Uranium Therefor, Feb. 24, 1970, Mar. 12-13, 1970, IAEA-Argentina-West Germany, IAEA
In accordance with the provisions of article XII of the Agency statute, these agreements
expressly provide that the provisions of the IAEA's Safety Standards and Measures, IAEA
INFCIRC/18 (May 31, 1960), shall apply to the respective projects they cover. IAEA-Yugoslavia
agreement, art. V and Annex; IAEA-Argentina-West Germany agreement, art. VI.
In essence, this Circular specifies that the agency is to assess the
measures and procedures which the project recipient intends to
implement to determine whether they will be adequate to "ensure the
observance of the safety standards specified in the agreement between the
Agency and the recipient states" 325 which in practice are the Agency's
own standards.326 If the Agency determines the proposed measures
and procedures are adequate for this purpose, "the Agency shall agree
to the starting of the assisted project. 327 Where the project is a
"nuclear facility," such as a nuclear power reactor,328 and in certain other
cases, the Circular provides that information on "the quantities of
radioactive waste which are likely to be produced and the methods of
waste management to be employed" shall be considered in determining
whether to permit the sale.3 29 In other words, nuclear waste
management is an issue which the Agency is to take into account in
determining whether its safety standards can be effectively applied to a proposed
Agency project and, hence, whether the project should be approved.33 °
The Circular does not, however, state how much weight is to be
given to the waste management aspects of a proposed project in
comparison to the other subjects it specifies as also "necessary to" the
Agency's safety decision. Thus, in theory, the Agency could overlook
deficiencies on the former subject, if it were satisfied other aspects of
the project were acceptable. Moreover, as of this writing, the Agency's
safety standards relating to the permanent disposal of post-fission
wastes are in only the preliminary stages of preparation. Hence, it
would be impossible for any candidate for an Agency project to
demonstrate that its safety measures would result in the effective
implementation of these, yet unwritten, standards. In practice, therefore, the
Agency has not required recipients to possess a future permanent waste
disposal capability as a condition for Agency approval of a proposed
324 IAEA INFCIRC/18/Rev. 1, § 1(2) (Apr. 1976).
325 Id. at § 4.8.
326 IAEA-Argentina-West Germany agreement, supranote 323, at art. VI; Yugoslavia-IAEA
Project Agreement, supranote 323, at Annex; Agreements for the Supply of Uranium Enrichment
Services for a Nuclear Power Facility in Mexico and Agreement for Assistance by the Agency in
Establishing a Nuclear Power Facility, IAEA-Mexico, INFCIRC/203, Annex (Apr. 5, 1974)
(agreement for the U.S. to supply through the Agency uranium enrichment services and a nuclear
power reactor to Mexico).
327 IAEA INFCIRC/18/Rev. 1,supranote 324, at § 1(2).
328 Id. at § 1.5.
329 Id. at § 4.8. In INFCIRC/18, as originally adopted in 1960, the Agency was similarly
authorized to require from project applicants information on "the methods of waste disposal."
INFCIRC/18, art. V(29)(b).
330 IAEA INFCIRC/18/Rev. 1,supra note 324, at § 1.5.
project. Nevertheless, post-fission nuclear waste management on an
interim basis has been a factor in the Agency's approval of its first two
power reactor projects, the Laguna Verde Nuclear Power Plant, Unit 1,
in Mexico and the Krsko Nuclear Power Plant in Yugoslavia. 33 1 The
project agreements for these facilities specify that the Agency shall
consider the acceptability of the measures for the "handling and storage of
spent fuel after unloading from the reactor," the first phase of a waste
The day may still be distant when the Agency would reject a
proposed project for want of an adequate permanent disposal program for
the project's undesired post-fission byproducts. It is, however,
significant that the Agency has, in its principal safety document, already
chosen to identify nuclear waste disposal as a subject relevant to project
approvals and has in practice scrutinized at least the first phase of
waste disposal in its two nuclear power reactor project approvals to
date.333 If nothing else, the Agency's policies lend legitimacy to the
view that nuclear supplier and recipient, alike, have an interest in
considering the waste disposal aspects of major exports at the time the
arrangements for the export are being concluded. As the introductory
portion of the Circular states with respect to this and other safety
The safe operation of nuclear facilities and the safe use of radiation
sources are of great importance to all persons connected with such
facilities and sources, to the State authorizing their operation or use, and to
other persons and States that might be adversely affected by their unsafe
operation or use. 3 3 4
In light of this statement, the failure of the principal free-world
nuclear suppliers (and the United States may be included in this group)
to examine the nuclear waste issue as part of their respective bilateral
nuclear cooperation programs is noteworthy since, as important
members of the IAEA Board of Governors,3 35 they have acquiesced in the
safety review requirements set forth in the Agency's Statute and the
331 See agreements discussed in notes 323 and 326 supra (the U.S. supplied the reactors for
these Agency projects).
332 See IAEA-Mexico agreement, supra note 326, at Annex; IAEA-Yugoslavia agreement,
supra note 326, at Annex.
333 See the agreements listed in note 332 supra.
334 See IAEA INFCIRC/18/Rev. 1, supranote 324, at § 2.2.
335 Canada, France, the Federal Republic of Germany, and the U.S. were members of the
IAEA Board of Governors in 1976, when INFCIRC/18/Rev. 1 was adopted, and they concurred
in this action. IAEA GOV/OR. 486 (June 1, 1976). All of these nations, except for West
Germany, also served on the Board when INFCIRC/18 was adopted. IAEA GOV/DEC/17(III)
(June 10, 1960).
Northwestern Journal of
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Circular, and presumably support their substance.336 Moreover, at
least two of these suppliers, West Germany and the United States, have
acquiesced in IAEA safety reviews of specific exports made through the
Agency, 33 7 indicating their willingness to have the nuclear waste issue,
among others, examined with respect to at least some of their exports,
though they have declined to undertake such examination in other
A number of reasons may explain why nuclear supplier countries
have been reluctant in their respective bilateral nuclear trade relations
to take up the waste disposal issue with their export recipients. None of
these reasons, however, fully explains why these suppliers have taken
such a decidedly different position with respect to exports made
through the IAEA.
Perhaps the prime explanation for the suppliers' avoidance of the
waste issue in dealing with their direct trading partners is that supplier
country governments have only begun to acknowledge the seriousness
of the nuclear waste disposal issue insofar as their own domestic
nuclear programs are concerned within the past several years. This
acknowledgment has resulted largely because of extra-governmental
political pressure, and only in this recent period have supplier nations
begun to accelerate domestic efforts to address the problem.339 Most
agreements for cooperation pre-date this change in the pace of
suppliers' domestic waste disposal programs.340 It is reasonable to assume
that when these agreements were drafted, supplier governments held
the same view toward wastes generated from exports as they held for
wastes generated at home, namely, that the technology for safe and
permanent disposal of these wastes would be developed in the future to
be available as the need for it arose. Accordingly, since wastes were
not a problem requiring immediate attention, there was no need to
address their disposition in export arrangements.
Moreover, with permanent waste disposal technologies as yet
un336 INFCIRC/18 was approved by the Board of Governors on March 31, 1960.
INFCIRC/18/Rev. 1 was approved by the Board of Governors on February 25, 1976.
337 IAEA-Argentina-West German agreement, supra note 323, at art. VI; US-IAEA supply
agreement/IAEA-Mexico project agreement, supranote 326, at Annex (containing safety review
requirements); US-IAEA supply agreement/IAEA-Yugoslavia project agreement, supra note 323,
at Annex (containing safety review requirements).
338 See text accompanying notes 259-63 and 309-11 supra.
339 See text accompanying notes 74-192 supra.
340 In the United States, for example, the major expansion of governmental programs for
disposing of post-fission wastes dates from FY 1975, see notes 76-114 supra, while virtually all U.S.
agreements for cooperation with its current nuclear trading partners were signed prior to that date.
NUCLEAR PROLIFERATION FAcTBOOK, supranote 184, at 274.
demonstrated in supplier states, suppliers, had they sought a
commitment from recipients to the safe disposal of export-produced wastes,
would have been seeking a pledge whose terms they themselves had
neither fulfilled nor even shown to be technologically feasible. In these
circumstances, recipient nations could fairly have questioned why their
right to go forward with nuclear power programs should be in any way
conditioned on the future disposal of produced wastes, while suppliers,
in view of their continued failure to implement comprehensive waste
disposal programs domestically, had obviously proceeded on a
different basis. In addition, it has been suggested that recipient states
perceive nuclear waste disposal and other hazards of nuclear power
generation as internal matters going to the exercise of their domestic
authority for the protection of their citizens and would view foreign
insistence on the implementation of specific health and safety measures
as an infringement of recipient state sovereignty.34' Thus, even had
supplier nations come to the view that the future disposal of export
produced nuclear wastes was a topic worthy of discussion with
recipients, fear of recipient resistance to such an initiative on the grounds just
noted could well have led suppliers to avoid pressing the waste disposal
issue during negotiations on nuclear trade relations.
Indeed, emphasizing the problems of the future management of
nuclear wastes during the course of negotiations with potential export
recipients would hardly have served the immediate interests of the
supplier nation. Whatever the supplier's reasons for entering into nuclear
commerce-extension of nonproliferation controls, maintaining stature
as a leader in the nuclear field, improving payment balances,
cementing relations with an ally, or wooing a new client state-to have
stressed an inevitable, increasingly politicized, and as yet unsolved
drawback to nuclear power would surely not have helped achieve this
objective. Within a given negotiation, moreover, supplier states may
well have had higher priority commitments (concerning, e.g.,
nonproliferation restraints) to obtain and may have been reluctant to
burden the negotiating process with additional demands regarding what
they perceived as secondary issues.
Also militating against the implementation of conditions
establishing recipients' responsibility for the safe disposal of nuclear wastes
through nuclear trade agreements or export controls has been the
competition among suppliers to develop nuclear trade with particular
recip341 See, eg., Hearingson Export-ImportBank Act Amendmentsfor 1978 Before the Subcomm.
on Resource Protection, Comn on Environment andPublic Works, 95th Cong., 2d Sess. 14-16
(June 20, 1978) (testimony of Marcus Rowden).
ients. In such a setting, a supplier can "price himself out of the market"
by imposing conditions on such trade which go beyond those of his
competitors. Indeed, it was this perception which led a group of
nuclear supplier nations, the so-called London Suppliers Group, to
establish uniform minimum non-proliferation controls over their exports as
a mechanism for averting a bargaining process in which such controls
might be traded away by one or another supplier for commercial
advantage?42 These guidelines, however, do not establish a uniform
position with respect to recipients' responsibility for nuclear waste disposal.
Thus, any supplier state seeking to include such terms in a nuclear
trade agreement could well be placing itself at a competitive
Assuming that some or all of the foregoing factors have influenced
these suppliers' thinking, there remains the question of why they have
nevertheless endorsed the IAEA's mandatory safety reviews, including
consideration of waste disposal issues. At a minimum, support for
Article XII of the IAEA Statute and for the Circular would seem to imply
that these suppliers consider reviews of the nuclear waste aspect of
exports to be desirable. This being the case, perhaps the most likely
explanation as to why suppliers have provided such reviews solely in the
case of IAEA projects is that only in this setting did these suppliers
believe such reviews could be implemented at an acceptable cost
politically and commercially. Recipient nations, as well as suppliers, it may
be noted, have ratified Article XII of the IAEA Statute and, by virtue
of their representation on the Agency's Board of Governors, the
Circular.3 43 Recipients have thus, in effect, agreed in principle to
prior-totransfer review by the Agency of the waste management aspects of
exports made under its auspices. From the supplier point of view, this
means that many of the political strains alluded to earlier, which might
be triggered by supplier insistence on such reviews in the context of
direct, bilateral exports, would not be likely to arise when the Agency
serves as intermediary. Similarly, since all suppliers desiring to use the
Agency in this capacity for particular exports would be equally subject
to the Circular, Agency review of the waste management aspects of
such exports would not commercially disadvantage one supplier
Although the history of nuclear cooperation over the past two
decades makes it most unlikely that IAEA intermediation will displace
bilateral cooperation as the basis for trade in the great majority of
342 See the Guidelines for Nuclear Transfer, note 190 supra.
343 See, e.g., note 335 supra.
nuclear power reactor and associated fuel exports, the acceptance by
suppliers and recipients of the principle of the Agency's examining
waste disposal issues before Agency-sponsored exports are approved
may provide a basis for introducing consideration of these issues in the
context of bilateral trade. Where, for example, both a supplier and a
recipient engaged in bilateral nuclear cooperation have, through their
participation in Agency activities, indicated their support for the
Circular and its subsidiary nuclear safety guides, it does not appear
unreasonable or necessarily controversial for the supplier to propose that the
recipient agree to follow such internationally developed guidelines with
respect to the wastes produced by the supplier's direct exports. If such
recipients were to adhere to these guidelines, they could develop a
strongly rooted international consensus on the issue. Suppliers, it may
be noted, have obtained recipient adherence to another set of erstwhile
voluntary Agency standards, those concerning physical security
measures for protecting nuclear materials against theft and sabotage,3 " with
TREATIES AND MULTILATERAL AGREEMENTS
A number of widely ratified treaties and multilateral agreements
include provisions which restrict nuclear waste disposal activities or
otherwise seek to lessen nuclear waste pollution. While none of these
deals primarily with nuclear waste disposal, each demonstrates the
willingness of certain countries to be restricted in their freedom to
pollute the global commons or frontier areas by multilateral agreement.
For example, the Antarctic Treaty signed at Washington, D.C., on
December 1, 1959, and ratified by a total of twenty-two countries
through June of 1979,346 is a broad document, limiting the exploitation
and use of the entire continent from a broad number of perspectives,
one of which deals explicitly with nuclear waste disposal.3 47 Article V,
section 1, of the Antarctic Treaty prohibits nuclear explosions in
Ant344 IAEA INFCIRC/225 (Sept. 1975).
345 The major nuclear supplier countries in their Guidelines for Nuclear Transfer have adopted
the categorization of nuclear materials contained in the IAEA's voluntary guidelines on physical
protection of nuclear materials, IAEA INFCIRC/225, as the "agreed basis" for physical security
covering future exports. INFCIRC/254, Annex B. See note 190 supra.
346 12 U.S.T. 794, T.I.A.S. 4780. States which are parties: Argentina, Australia, Belgium,
Brazil, Bulgaria, Chile, Czechoslovakia, Denmark, the Federal Republic of Germany, France, the
German Democratic Republic (with declaration), Japan, the Netherlands (including the
Netherlands Antilles), New Zealand, Norway, Poland, Romania (with a statement), Spain, South Africa,
the U.S.S.R., the United Kingdom, and the United States.
347 Id. at art. V, § I.
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arctica and the disposal there of "radioactive waste material."3'48
Similarly, the London Convention is the leading international
agreement on pollution of the oceans and covers a broad range of
issues on this subject.34 9 In its annexes, it deals specifically with the
dumping of nuclear waste in the world's oceans.35 0 Annex I, relating
back to Article Four's prohibition of certain types of dumping in the
oceans, states: "High-level radioactive wastes or other high-level
radioactive matter, defined on public health, biological or other grounds, by
the competent international body in this field, at present the
International Atomic Energy Agency, [are] unsuitable for dumping at sea." 3 5 '
The Convention allows for dumping of non-high-level wastes only
under special permits, with the added understanding that the
Contracting Parties should take full account of the recommendations of the
IAEA in seeking such permits.35 2 There has been some concern
expressed that the Article 4/Annex I ban on dumping of high-level
radioactive waste is itself weak since it relies on the IAEA's recently
recommended revision to its definition of high-level radioactive
waste.35 3 This definition of "high-level" radioactive waste is based on
immediate release and dispersion rates of the radioactive material, but
349 Convention on the Prevention of Marine Pollution by Dumping of Wastes, 26 U.S.T. 2403,
T.I.A.S. No. 8165, enteredintoforce August 30, 1975. See D. DeFSe, supra note I, at 68, 91.
350 The London Convention was developed in a series of four intergovernmental meetings in
1971 and 1972 and a Conference in October and November 1972. With fifteen ratifications or
accessions, it entered into force on August 30, 1975. See 26 U.S.T. 2403, T.I.A.S. No. 8165, at
States which are parties include Afghanistan, the Byelorussian Soviet Socialist Rep., Canada,
Cape Verde, Cuba, Denmark (extended to Faore Islands), the Dominican Rep., France (with
reservation and statement), the German Democratic Rep., Guatemala, Haiti, Hungary, Iceland,
Jordan, Kenya, Libya, Mexico, Monaco, Morocco, New Zealand (not applicable to Cook Islands,
Niue, and Tokelau Islands), Nigeria, Norway, Panama, the Philippines, Spain, Sweden, Tunisia,
the Ukrainian Soviet Socialist Rep., the Union of Soviet Socialist Reps., the United Arab
Emirates, the United Kingdom (extended to Bailiwick of Guernsey, Belize, Bermuda, British Indian
Ocean Territory, British Virgin Islands, Cayman Islands, Ducie and Oneo Islands, Falkland
Islands and dependencies, Gilbert Islands, Henderson, Hong Kong, Isle of Man, Bailiwick of Jersey
Montserrat, Pitcairn, St. Helena and dependencies, Solomon Islands, Turks and Caicos Islands,
Tnvalu, and United Kingdom Sovereign Base Areas of Akotiri and Dhekelai on the Island of
Cyprus), the United States, Yugoslavia, and Zaire.
Implementing legislation: Marine Protection Research and Sanctuaries Act of 1972, Pub. L.
No. 92-532, 86 Stat. 1052 (1972), as amendedPub. L. No. 93-254, 88 Stat. 50 (1974). For a
comprehensive discussion on sea dumping and seabed disposal of nuclear wastes, see D. DEacE, note I
351 See 26 U.S.T. 2403, T.I.A.S. No. 8165, at Annex I.
352 Id. at Annex I and art. IV.
353 See Statement of Clifton E. Curtis on behalf of the Environmental Defense Fund et al.,
Before the Subcomm. on Oceanography of the House Comm. on Merchant Marine and Fisheries
(July 1I, 1978) (concerning nuclear waste disposal in the oceans).
it does not include criteria concerning the isolation and containment of
wastes or minimizing the number of dumping sites, criteria espoused by
some critics, including the U.S. Environmental Protection Agency.35 4
However, EPA prodding has led to IAEA Advisory Group
recommendations which, if adopted, would amend the definition of "high-level"
wastes to incorporate these broader principles, thereby tightening still
further the restrictions on the ocean dumping of these radioactive waste
An analysis of the signatories to the London Convention and to
the Antarctic Treaty demonstrates that, while all the major supplier
countries are signatories to these agreements, with the sole exception
that Canada and Sweden have not yet signed the Antarctic Treaty,
many of the purchaser countries have not signed one or both
agreements. 6 In other words, the supplier countries are more likely to
354 Id. (statement of Dr. William D. Rowe, Deputy Ass't Administrator, Environmental
355 See, Statement of Clifton E. Curtis, note 353 supra. Statement of Dr. William D. Rowe,
note 354 supra.
a Country names in upper-case lettering are nuclear support nations; listed beneath each
supplier nation are its principal nuclear export recipients.
b x indicates that the country has ratified the treaty; NR indicates that the country has signed,
but not yet ratified the agreement under consideration.
Northwestern Journal of
International Law & Business
agree to restrictions on the use of the global commons than are
purchaser countries, especially less developed purchaser countries.
Presumably, supplier countries which have agreed to such restrictions on
their own waste disposal activities to protect the global environment
would wish to see their purchaser countries abide by comparably
rigorous standards. Otherwise wastes from a supplier's nuclear exports
could cause the very harm the supplier had wished to avoid in ratifying
the anti-pollution accords. Supplier countries, however, have not
sought to influence purchaser countries to abide by restrictions on their
disposal of nuclear wastes by seeking assurances on this issue in
nuclear fuel and equipment supply agreements.
A third agreement of note is the Convention on Third Party
Liability in the Field of Nuclear Energy (the Paris Convention) ratified by
most of the OECD nations." 7 This Convention binds the signatories to
share in a portion of the financial liability for injuries arising from civil
nuclear accidents, including those arising from nuclear waste.358 It also
sets an upper limit of liability on the operators of nuclear installations
World List ofNuclearPower Plants,note 40 supra.
357 Doc. C (60) 93 (Final Text). Published at Paris, July 29, 1960, by the European Nuclear
Energy Agency, Organization for European Economic Co-operation, and Convention of 31st
January 1969 Supplementary to the Paris Convention of 29th July 1960 on Third Party Liability in
the Field of Nuclear Energy.
358 See id. at arts. l(a)(i), l(a)(iv), and 7.
and waste disposal sites3. 5 9 The shared liability for nuclear accidents
should give the signatories of the Paris Convention an incentive to
cooperate toward assuring safe disposal of nuclear wastes.
The scope of the application of the Paris Convention to nuclear
waste, however, is very limited. Under articles 3(a) and 4(a) of the
Paris Convention, the operator of a nuclear installation is liable for
damage caused by a nuclear incident involving radioactive waste in, or
coming from, his installation until the operator of another nuclear
installation has taken charge of such wastes. Facilities for storage of
radioactive waste are among the installations to which the Paris
Convention applies, but disposal repositories are not referred to in the
Convention. It seems impracticable to consider that all operators in
whose installations the waste was last held before disposal into a
repository would forever remain liable and would forever have the
obligation to maintain insurance coverage under article 10 of the Convention.
This problem is dealt with in part by article 8 which limits the period of
liability of the operator to only ten years after abandonment of nuclear
waste. Further elaboration and expansion through amendment is
clearly desirable on the question of very long-term liability after a
postfission waste repository were sealed and on the need to provide reserves
of money or substitute comfort to cover liability for centuries into the
The Vienna Convention is an attempt to apply more broadly the
third party liability concept to any signatory nation, while the Paris
Convention is limited to OECD members.36 0 Though its terms apply
to nuclear waste,3 61 the Vienna Convention suffers from the same lack
of clarity as the Paris Convention with regard to long-term waste
disposal. Article VI limits the liability of an "operator" of a nuclear waste
disposal site to the first twenty years after the abandonment of the site,
again raising questions as to the Convention's long-term applicability
following the closing of a post-fission nuclear waste repository.
Amendments to the Vienna Convention to clarify liability for damage
stemming from waste disposal are clearly desirable.
Although it does not allude to nuclear waste disposal, the Nuclear
360 Vienna Convention on Civil Liability for Nuclear Damage, openedforsignatureMay 21,
1963, IAEA Doc. LN-12/46.
361 Id. at art. I(l)(h)(ii). See text accompanying note 359 supra;and see especially art. VI(I) of
the Vienna Convention which limits liability to damage within ten years of a "nuclear incident"
and art. XXV(2), which allows countries to terminate participation in the convention each five
Test Ban Treaty3 62 is an example of a treaty limiting certain types of
nuclear activity. This treaty bars any nuclear weapons tests in the
atmosphere, in outer space, under water (including territorial waters or
high seas), or in any other environment if such explosion causes
radioactive debris to be present outside the territorial limits of the State
under whose jurisdiction or control such explosion is conducted.363
Similarly, the currently pending Treaty between the United States of
America and the Union of Soviet Socialist Republics on the Limitation
of Underground Nuclear Weapon Tests,3 64 the currently pending
Treaty Between the United States of America and the Union of Soviet
Socialist Republics on Underground Nuclear Explosions for Peaceful
Purposes, 365 and the ratified Treaty on the Non-Proliferation of
Nuclear Weapons366 all place limits on the signatories' use of or
experimentation with nuclear materials.
The "Recommendation of the Council" of the Organization for
Economic Co-operation and Redevelopment "For Strengthening
International Co-operation and Environmental Protection in Frontier
Regions" was adopted on September 21, 1978.367 It sets forth non-binding
guidelines for member countries to use when activities within their
borders threaten to pollute the territory of a neighboring country. Among
these guidelines are: sharing with the government and public of
neighboring countries any environmental impact studies on the effects of
border area pollution, the inclusion in environmental impact studies of
the impact on neighboring countries of polluting activity, and
cooperation with neighboring countries in developing and implementing
environmental standards. However, it does nothing specific to adopt or
advance standards for nuclear waste disposal.
These multilateral agreements show a willingness of nations to
362 14 U.S.T. 1313, T.I.A.S. No. 5433 (1963). The U.S.S.R., United Kingdom, and U.S. are
363 Id. at art. I (1)(a) and (b).
364 Signed on July 3, 1974, reprinted in DEP'T STATE BULL., July 29, 1974, at 216.
365 Signed on May 28, 1976, reprinted in DEP'T STATE BULL., June 28, 1976, at 802.
366 21 U.S.T. 438, T.I.A.S. No. 6839 (1970). See also Treaty for the Prohibition of Nuclear
Weapons in Latin America, Feb. 14, 1967, 22 U.S.T. 754, T.I.A.S. No. 7137; Seabed Arms Control
Treaty, Feb. 11, 1971, 23 U.S.T. 701, T.I.A.S. No. 7337 (prohibits emplacement, storing, and
testing of nuclear weapons on the ocean floor outside territorial waters).
367 O.E.C.D. Doc. C (78) 77 (Final) of September 27, 1978. This Recommendation was based
upon earlier Council Recommendations; specifically, the Council Recommendations or Principles
concerning Transfrontier Pollution (November 14, 1974), on Equal Right of Access in relation to
Transfrontier Pollution (May
), and on Implementation of a Requirement of Equal Right
of Access and non-Discrimination in relation to Transfrontier Pollution (May 17, 1977) appear
respectively at 14 INT'L LEGAL MATERIALS 242 (1975), 15 INT'L LEGAL MATERIALS 1218 (1976),
and 16 INT'L LEGAL MATERIALS 977 (1977).
deal with pollution and nuclear matters by treaty and convention.
While the developed countries generally have been more willing to
agree to the requirements of these agreements than have less developed
countries, participation has been broad enough to suggest that an
accord on nuclear waste disposal might be feasible and worth pursuing.
A number of points have emerged from the preceding discussion.
First, the accumulation of post-fission nuclear wastes has become a
subject of public concern and political controversy in the great majority
of nations where nuclear power has begun to play an important role in
electric power generation. Such concern and controversy in many of
these cases threatens the continued use of nuclear power or its
expansion, outcomes which could undermine efforts of these nations to
decrease their dependence on imported oil as an energy source.36 8 In
addition, improper disposal of post-fission wastes can lead to serious
common areas.36p9ollution and environmental degradation of global
These risks notwithstanding, no nation anywhere in the world has
successfully implemented a complete program for the disposal of
postfission wastes.3 70 To date, not one facility for the permanent disposal
of high-level wastes or spent fuel has been placed in operation, and in
many nations, including the United States, other major facets of
nuclear waste disposal programs have yet to be decided upon or
implemented. In less developed countries with nuclear power programs,
moreover, planning for post-fission waste disposal often appears to be
rudimentary at best.372
Furthermore, despite the fact that all nations relying on nuclear
power confront a common problem in disposing of their post-fission
by-products and despite the fact that actions taken by any one of them
to deal with the matter may affect the safety and environmental
interests of other nations, either directly or by contaminating areas shared
by all nations, international efforts to address the nuclear waste hazard
have been limited, both in terms of developing common technical
solutions to the problem and in terms of establishing norms for the
avoidance of international injury from the conduct of disposal activities.
368 See text accompanying notes 2-18 supra.
369 See text accompanying notes 22-26 and 69-70 supra.
370 See text accompanying notes 74-192 supra.
372 See text accompanying notes 179-92 supra.
While, for example, the Euratom nations have agreed to the pooling of
information from national waste disposal research and development
activities and to the coordination of efforts so as to avoid duplication,
other nations with active R & D programs, including the U.S. and
Sweden, are proceeding largely on their own, sometimes covering the same
ground. Similarly, although international organizations have
developed widely accepted guidelines addressing a number of potentially
hazardous aspects of nuclear commerce, they are only at the
preliminary stages of developing comparable guides for post-fission waste
disposal. International agreements rule out disposal of post-fission wastes
in the global common areas of the high seas and Antarctica, but do not
appear to have addressed definitively the issue of transborder pollution
nor to have established affirmatively acceptable standards of conduct
for post-fission waste disposers.37 3
Nuclear export activities on the part of the United States, France,
West Germany, and Canada have, in a sense, contributed to the
worldwide burden posed by nuclear wastes through the dissemination of
nuclear technology.37 4 Yet these nuclear suppliers appear to have
provided recipient nations with little in the way of technical assistance to
address this inevitable problem. Nor have suppliers sought pledges
from recipients that such wastes will be disposed of in an
internationally responsible manner, even though (1) concerns have been raised as
to the adequacy of less developed recipient country disposal
programs, 37 5 (2) exporters have demanded and obtained numerous other
guarantees concerning the use of exported nuclear technology, 376 and
(3) suppliers and recipients alike have endorsed IAEA documents
which, in general terms, recognize the hazardous nature of nuclear
wastes and the overall need for their safe disposal.37 7 Indeed, suppliers
have continued exports to nations which have so far refused to ratify
international agreements prohibiting disposal of post-fission wastes in
the high seas and on Antarctica-pacts to which the suppliers
themselves have adhered-leaving open the possibility that wastes from
nuclear exports will be disposed of in a manner directly at odds with the
policies of the exporting nation.37 8
373 See text accompanying notes 345-67 supra.
374 See text accompanying notes 259-345 supra.
375 See notes 28 and 181 supra.
376 Under all the agreements cited in note 309, supra,for example, recipients pledge not to use
imported nuclear technology for nuclear weapons. See also Guidelines for Nuclear Transfer, note
190 supra, under which exporter nations will require numerous guarantees from their export
377 See text accompanying notes 318-32 supra.
378 See text accompanying notes 346-56 supra.
Finally, concerns that the proliferation of nuclear weapons would
be spurred by the spread of reprocessing capabilities and the
accumulations of plutonium under national control have introduced major
uncertainties into the post-fission waste disposal programs of many
nations regarding whether spent fuel will be disposed of directly or
reprocessed.3 7 9 These uncertainties are particularly acute in countries
for which the United States has been the principal supplier of nuclear
fuel inasmuch as reprocessing decisions concerning this material are
subject to U.S. approval. As long as the issue remains unresolved,
increased reliance on interim spent fuel storage appears inevitable and it
is quite possible that ultimate decisions on reprocessing and, thus on
the direction of waste disposal programs, may be deferred until further
information on the need to recover the uranium and plutonium in
spent fuel is available.
This analysis suggests a number of areas where increased
international cooperation may be fruitful in alleviating the adverse
environmental-and political-impacts of post-fission wastes within individual
nations, between neighboring nations, and on commonly shared
portions of the globe.
National efforts to address the problems posed by post-fission
wastes are likely to be aided by expanded cooperation among nations
on the technical aspects of this issue. Such cooperation would appear
to be a valuable, uncontroversial, and easily accomplished means for
achieving more efficient deployment of worldwide scientific and
financial resources devoted to this subject and, by fostering the
exchange of information, could well reduce the time needed to develop
effective waste disposal mechanisms. This would yield obvious benefits
to all cooperating nations. Cooperative efforts could also prove
beneficial because any proposed post-fission waste disposal plan supported
by the technical communities and governments of several nations
might enjoy greater credibility in the eyes of their respective publics
than proposals advanced by a single government. Improved national
programs for post-fission waste disposal would, in turn, lessen the risk
of radiological pollution beyond national borders.
A variety of mechanisms may be conceived for expanded
international cooperation on the technical aspects of nuclear waste disposal,
many of them already tested in practice. These include general
agree379 See text accompanying notes 91-97, 191, 276-89, and 293-305 supra.
Northwestern Journal of
International Law & Business
ments for the exchange of technical information, 80 jointly funded and
executed research and development projects,3 ' coordinated
independent research and development efforts, and the funding of R & D
activities to be performed under the supervision of international
organizations such as the IAEA or the CEC.382 As national programs
progress, one option which may merit further study would be joint
technical involvement in the first national repository to be built-be it
a "pilot scale" or full-size facility-where all cooperating nations
would share in the scientific data generated. Not only would
cooperating nations receive invaluable technical knowledge, but their first hand
involvement in the project itself could enhance their credibility in
addressing public concerns over post-fission waste disposal at home.
Another alternative worthy of consideration would be the
initiation of a major international "study", modeled after the on-going
International Nuclear Fuel Cycle Evaluation 38 3 which could attempt to pool
existing knowledge from various national sources, delineate current
research needs, and recommend a coordinated attack on major
knowledge gaps by the national research and development programs of
participating governments. The study could be reconvened
periodically to incorporate new developments, gradually progressing toward a
definitive international consensus on acceptable waste disposal
As noted, many of these cooperative mechanisms have been
employed previously, usually on an occasional and ad hoc basis. A
concerted effort to maximize international cooperation on nuclear waste
management issues, however, has never been mounted. In view of the
considerable importance of these issues to all nations seeking to rely on
nuclear power as a means for reducing dependence on foreign energy
sources, such a concerted effort may now be timely. Progress can be
made, notwithstanding uncertainties regarding reprocessing, by
focusing on post-fission waste disposal mechanisms which could be used
both for post-reprocessing high-level wastes and spent fuel. Both the
U.S. and Sweden are already following this approach.38 4
380 See, e.g., AEC-Eurochemic agreement, note 266 supra;ERDA-U.K.A.E.A. agreement, note
381 See, e.g., ERDA-Swedish Nuclear Fuel Supply Company agreement, note 266 supra.
382 See text accompanying notes 193-223. See also NEA GROUP REPORT, supra note 58, at 68
("Geologic disposal is a primary candidate for [research, development, and demonstration] work
both at national and international levels.").
383 See text accompanying notes 228-40 supra.
384 See text accompanying notes 90-97 and 151-57 supra.
Actions by Nuclear Supplier Nations
Nuclear supplier states may take a number of steps to reduce the
risk of transborder pollution and contamination of global common
areas arising from the disposal of post-fission waste produced by their
exports. Most readily implemented would be an affirmative offer of
technical assistance by suppliers in all facets of post-fission waste
management. This would provide the basis for recipients to implement
disposal practices akin to those of suppliers and would offer the occasion
for suppliers, as they tendered such assistance, to encourage this
outcome. Waste disposal assistance could be offered at normal market
prices, much as other nuclear technology is sold to recipients, avoiding
the need for significant financial commitments by suppliers. Unlike the
apparent situation today, however, suppliers would be acting
affirmatively to address the international hazard (as well as the hazard to
recipient nations themselves) arising from the unwanted byproducts of
suppliers' nuclear commercial activities.
A second approach would be for suppliers to seek assurances from
recipients that nuclear wastes from supplied technology will be
disposed of responsibly. Such assurances could be sought informally
through consultations and other diplomatic exchanges, or could be
made a condition for further nuclear technology exports, although the
latter approach may be undesirable for a number of reasons discussed
earlier.38 Suppliers who are parties to the 1972 London Ocean
Dumping Convention and the 1957 Treaty on Antarctica would appear to
have a strong interest in obtaining assurances from recipients which
have not adhered to either or both of these accords that they will abide
by the strictures of these instruments concerning the disposal of
postfission nuclear wastes so as to avoid undermining the effect of the
suppliers' own ratification of these agreements. 386
Apart from suppliers' presumed interest in effectuating the
purposes of these two accords, however, supplier nations, as world leaders
in the field of nuclear power and as the parties which have reaped the
profit from world nuclear trade, may be charged with at least a
modicum of responsibility for the hazards which inevitably arise from their
exports. Where, for example, post-fission waste management practices
of a recipient nation were despoiling global common areas, the world
community could well hold a supplier country making nuclear
technology transfers to such a recipient without regard to its waste disposal
385 See text accompanying notes 339-42 supra.
386 See text accompanying notes 346-56 supra.
Northwestern Journal of
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program at least partly to blame for the resulting harm. These
considerations suggest that suppliers may have a legitimate interest in
encouraging safe nuclear waste management practices on the part of their
customers and, accordingly, in seeking assurances that such practices
will be implemented.
It may also be recalled that suppliers and recipients through their
participation in the IAEA may be said to have broadly endorsed the
notion that recipient waste disposal practices may be considered in the
course of deciding whether particular nuclear technology transfers
should be authorized. 8 7 This fact would add legitimacy to supplier
requests for assurances on this subject and correspondingly weaken the
basis for recipient country objections thereto. For a variety of reasons
noted earlier, unilateral action by individual suppliers may be an
unattractive approach to guaranteeing nuclear waste disposal safety on the
part of recipients.388 Most salient, perhaps, is that such actions may
prove ineffectual if recipients are free to turn to alternate suppliers not
seeking this additional constraint on their conduct. This suggests that
multilateral efforts, either on the part of suppliers as a group, following
the approach of the London Suppliers Group nonproliferation
guidelines,389 or in a wider context, such as through an international accord,
may be a more fruitful alternative for implementing norms concerning
acceptable post-fission waste disposal methods.
A final option for supplier action to alleviate the risks of
international pollution from the post-fission wastes produced by exported
nuclear technology would be for suppliers to assume responsibility for
disposing of such materials by taking them back, much as the United
States has offered to do on a limited basis. Such proposals, however,
are likely to encounter considerable domestic opposition within
supplier nations and, accordingly, to be difficult to implement. They may,
however, stand a greater chance of gaining public acceptance if they
are perceived as conferring a benefit, in addition to a reduction of
world-wide post-fission waste pollution risks, on the supplier state, for
example, by diminishing the danger of nuclear weapons proliferation.
In this context, supplier take-back of spent fuel would appear more
likely to achieve public acceptance than retention in supplier countries
of post-reprocessing high-level waste.39°
387 See text accompanying notes 318-34 supra.
388 See text accompanying notes 339-42 supra.
389 See note 190 supra.
390 See text accompanying notes 281-85 supra.
InternationalAgreements, Guidelines,and StorageArrangements
Although the discussion immediately preceding has focused on
possible future transboundary and global common area pollution by
nuclear recipient nations, such harms can arise from the conduct of any
nation using nuclear power, including the principal nuclear suppliers
themselves and other states with indigenous nuclear programs. For this
reason, efforts to lessen the risks of such pollution which focus
exclusively on nuclear importer nations will, at best, be only partially
effective in addressing this issue. Accordingly, while concerted supplier
action to seek recipient assurances regarding future waste disposal
practices could well prove beneficial, if only in a limited sphere, the
remainder of this article will focus on more comprehensive
international approaches to this subject.
Undoubtedly the most effective means for minimizing
cross-border global common area pollution from post-fission wastes would be
wide-scale adherence to a treaty or international convention on this
subject which set forth the duty of adherents to avoid nuclear waste
pollution beyond their borders. As noted above, such accords for
protecting global common areas have for a number of years been open for
ratification. Unfortunately, a large number of nuclear power user
states have not yet ratified these instruments. Encouraging adherence
by these nations is obviously desirable.
It may also be noted, however, that since these accords involve
many issues apart from nuclear waste disposal, nonadherence in these
cases may not necessarily signify opposition to the conventions'
restrictions on this activity. This fact suggests an additional approach which
might be fruitful, namely, an initiative, perhaps under the auspices of
the IAEA, to obtain less formal undertakings from nonadherents to the
London Convention and the Antarctic Treaty to the effect that they
intend to act in consonance with the prohibitions in these accords
regarding post-fission waste disposal. This could reduce risks of global
common area pollution from these materials while not affecting other
objections which nonadherents may have to these accords. A precedent
for such defacto adherence to international agreements concerning
nuclear technology, it may be noted, is France's undertaking to behave as
though it had ratified the Treaty on the Non-Proliferation of Nuclear
Weapons, even though it has not, in fact, formally adhered to that
391 Treaty on the Non-Proliferation of Nuclear Weapons, note 366 supra; Hearingson the
SecondNuclear Non-Prolferation Treaty Review Conferencebefore the Subcomm. on Int'l Security
Northwestern Journal of
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Accords also exist concerning third party liability for nuclear
accidents with impacts in foreign nations3. 92 The Paris and Vienna
Conventions specifically address third-party liability for injuries resulting
from nuclear waste and cover injuries from interim waste storage and
the first years of long-term disposal. This is an excellent beginning and
could be followed up with amendments to the Paris and Vienna
Conventions clarifying long-term coverage of injury resulting from
permanent post-fission waste disposal. Neither convention, however,
specifically addresses the development of strict nuclear waste disposal
standards.393 More brQadly, accords concerning transboundary
pollution, generally, do not address the specific issue of pollution from
postfission radioactive wastes.394 Extending the coverage of both types of
accords to include long-term post-fission waste contamination may well
be a practical approach to reducing the risk of cross-border pollution
from these materials inasmuch as these agreements already embody a
recognition of the general class of hazard posed by such radioactive
wastes and set forth rights and duties for alleviating such hazards,
either through compensation of resulting injuries or by direct reduction
of the hazard itself.
Development of an entirely new international accord to cover
transborder and global common area pollution from post-fission wastes
may thus be unnecessary. In addition, development of such a new
accord would likely be considerably more protracted both for the time
needed to negotiate its text and for obtaining formal ratifications, than
would be the case if the initiatives suggested above, based on the
framework of existing accords, were pursued.
An additional approach for achieving international agreement on
basic standards for disposing of post-fission waste so as to reduce the
dangers of international pollution would be the promulgation by the
International Atomic Energy Agency of guidelines covering this field to
which IAEA member states could adhere on a voluntary basis. This
approach has proven successful in the areas of international
transportation of radioactive materials and in the implementation of physical
security standards against illicit seizure of nuclear materials by terrorists
or other subnational groups.395 In both instances the Agency's
guidelines have gained virtually universal acceptance by nations with
nuandScientfc Affairs andon Int'lEconomic PolicyandTrade ofthe House ForeignAffairs Comm.,
96th Cong., 1st Sess. 44 (July
) (testimony of Charles Van Doren).
392 See text accompanying notes 357-61 supra.
394 See text accompanying note 367 supra.
395 See note 204 supra.
clear programs. Significantly, because the development of such guides
takes place as part of the on-going business of the Agency, avoiding the
need for formal treaty negotiations, and because adherence to such
guides does not entail the formal processes mandated for treaty
ratification, this approach could prove more efficient in establishing an
international consensus on post-fission waste disposal than the development
of a new convention on the subject or even the extension of existing
conventions to encompass this area.
While the Agency, as noted earlier, is still in the early stages of
developing its technical safety standards for post-fission waste
disposal,396 the voluntary guidelines, if worded broadly in terms of basic
principles and performance standards, could be promulgated in
advance of the completion of these detailed safety standards and revised
in the future to incorporate the standards, as needed. To provide an
example, the guidelines when first issued might include a statement
that post-fission wastes are to be disposed of in a manner which will not
cause injury beyond the border of the disposing nation and that use of
geologic repositories for disposal under conditions which ensure
repository integrity for a minimum period of time-perhaps 10,000 years-is
an acceptable disposal mechanism.
As noted above, Working Group 7 of the International Nuclear
Fuel Cycle Evaluation will apparently endorse accelerated
development of internationally agreed upon codes and standards for
postfission waste disposal.397 This broad support should give added
impetus to the IAEA's work on this promising approach for lessening the
risk of international contamination from these materials. It is worth
noting in this regard that as international standards are developed they
could prove most valuable in aiding individual nations in the
development of their domestic nuclear waste disposal programs, on the one
hand providing guidance to those nations with programs and standards
in the early stages of evolution, and on the other, enhancing the
credibility before domestic publics of more developed programs which
conform to such standards.
Finally, on-going international efforts to develop joint spent fuel
storage facilities may also play an important role in curtailing the risks
of transboundary and global commons pollution. Since, for example,
the concept of such facilities will inevitably entail one nation's playing
host to the facility-and thus to the wastes of other nations-safety
conditions are likely to be especially rigorous; absent such conditions, it
396 See text accompanying notes 199-202 supra.
397 See text accompanying notes 228-40 supra.
is hard to imagine the public in a potential host country, already
concerned over the management of domestically produced wastes,
accepting additional radioactive materials from abroad. The stringency
of waste management safety standards in other nations participating in
such a joint storage facility, conversely, might vary across a wide range.
On balance, therefore, placement of post-fission wastes in multilateral
facilities is likely to provide a high degree of protection against
pollution for all stored materials, whereas retaining the materials under the
national programs of the respective participating nations might not
provide comparable protection in all cases. Even assuming that the
multilateral facility provided only interim storage, rather than a
permanent disposal capability, a net benefit in terms of reducing the risk of
radioactive pollution over the short run could still be achieved.
As noted above, moreover, cooperation in the development of
international post-fission wastes storage facilities is likely to aid in the
development of an international consensus on acceptable longer term
disposal mechanisms.398 Thus in addition to their contribution to
nonproliferation objectives, multinational spent fuel storage facilities could
aid in a number of respects in reducing the risk of international
radioactive pollution from post-fission wastes, assuming political and other
obstacles can be overcome.
The foregoing analysis indicates that while national and
international activities for disposing of post-fission wastes today remain
unfinished, and in some cases rudimentary, a wide range of international
cooperative initiatives would appear to be available for helping to
address the political, health, safety, and environmental risks posed by
these materials. Some of these initiatives, at least, would seem
relatively uncontroversial and fairly easy to implement; and, in some
instances, work is already underway to bring them to fruition.
398 See text accompanying notes 257-58 supra.
7 See text accompanying notes 74-192 infra.
8 Conversation between Leonard S. Spector and Atomic Industrial Forum Staff (Aug . 1979 ). See text at notes 74-192 infra and related footnotes for discussion of projected development of nuclear generating capacity . But see Britain Plans Nuclear EnergyIncrease ,Washington Post, Oct. 17 , 1979 at A9, col. 1. For information on the recent slowdown, see NUCLEONICS WK ., July 12 , 1979 , at 3-4 (NEA predicts that expected nuclear growth for remainder of century has dropped by 38% for OECD countries); Euratom Study Notes EEC Nuclear Slowdown , NUCLEAR FUEL , June 25, 1979 ( EEC forecast of nuclear growth down 60%since 1974 estimate); Gorleben HearingsStart Wi-th Germanyr Nuclear FutureRiding On Them, NUCLEONICS WK ., Mar . 29 , 1979 , at 11-12; JapanIntendsto Slow Its Plansto Increase Nuclear Power Output , Wall St . J., Aug. 2 , 1979 , at 20, col. 3.
10 See generally FoRD-MITRE STUDY , note 1supra .
11 See, ag., Enthusiasm about Nuclear Power Turns to Anxiety in West Germany, N.Y. Times , Feb. 7 , 1977 , at A8, col. 2 (city ed.); Oppositionto NuclearPower,4 ENERGY POL'Y 286-307 (Dec . 1976 ).
12 See NUCLEONICS WK., Nov. 9 , 1978 , at 4.
13 Ird 1 : 569 ( 1979 )
14 21 NUCLEAR L. BULL . 24 (summary of Act No. 140 , § 2, Apr . 21 , 1977 ); The Swedish Coalition Government HasAgreedto Allow Two Reactorsto Be Started,NUCLONICS WK ., Oct. 5 , 1978 , at 7.
15 GorlebenHearingsStart with Germany'sNuclearFutureRidingon Them, NUCLEONICS WK ., March 29 , 1979 , at 11-12.
16 See Germany 's NuclearProject on the Skids, Energy Daily , May 17 , 1979 , at 1.
17 See MacLachlan, OnceAgain JapanAsks U.S. ConsentforSpent FuelReprocessing ,Energy Daily, Dec. 15 , 1979 , at 30; Hearingson Nuclear TransferforReprocessing: PendingCases,Before the Subcomm . on Int'lPolicy and Trade ofthe House Coma on Int'lRelations, 95th Cong., 2d Sess . ( 1978 ) [hereinafter cited as NuclearFuel TransferHearings] .
18 U.S. GENERAL ACCOUNTING OFFICE, THE NATION'S NUCLEAR WASTE-PROPOSALS FOR ORGANIZATION AND SITING 3-6 (EMD-79-77) (June 21, 1979 ).
20 See ROYAL COMMISSION REPORT, note 1 supra;Mayman , The CanadianProgramforStorage and Disposalof Spent Fuel and High-Level Wastes, in PROCEEDINGS OF IAEA AND NEA SYMPOSIUM ON MANAGEMENT OF RADIOACTIVE WASTES FROM THE NUCLEAR FUEL CYCLE 49 (IAEA -SM- 207 /91) (Mar. 1976 ).
21 See Swiss Referendum NarrowyApproves NuclearProgram ,Wall Street J., Feb . 20 , 1979 , at 10, col. 4; Swiss Reject Curb on NuclearPower, Wash . Post, Feb. 19 , 1979 , at A35, col. 1.
22 See generally Donnelly & Kramer, Evidence of Opposition to NuclearPower in Europe, reprintedin CONG . RESEARCH Smv., LIB. CONGRESS, REPORT No. 78-210 ENR (Oct. 16 , 1978 ). This study reviews major events concerning opposition to nuclear power plant development as reported in Nucleonics Wk ., Energy Daily , and Nuclear Eng'r Int 'l. The study concludes that concern about the risks of long-term nuclear waste disposal and the absence of a demonstrated long-term disposal methodology have been major concerns of those parties in Europe and Japan opposed to development of nuclear power . See also P. Lewis, All1 Over Europe, the Atoms are Restless , N.Y. Times , Dec. 3 , 1978 , at E3, col. 1 (city ed.).
23 Rippon, ProspectsLook Goodfor Gorleben Center,21 NUCLEAR NEWS 48 , 49 (Feb. 1978 ). See also Teclaff & Teclaff, TransboundaryGround Water Pollution: Survey andTrends in Treaty Law, NAT . RESOURCES J. 629 , 635 ( 1979 ).
24 INTERGOVERNMENTAL CONFERENCE ON THE CONVENTION ON THE DUMPING OF WASTES AT SEA , FINAL DOCUMENTS , adopted Nov. 13 , 1972 [hereinafter cited as London Convention]. For further discussion of the London Convention, see text accompanying notes 349-56 infra.
26 See D. DEESE , NUCLEAR POWER AND RADIOACTIVE WASTE 123-41 ( 1978 ).
27 For discussion of nuclear export programs and supplier nations' practices with respect to the radioactive wastes produced therefrom, see text accompanying notes 259-345 infra. Iran's nuclear power program has been abandoned . See note 179 infra.
28 For discussion suggesting that less rigorous safety standards have been implemented among less developed countries using nuclear energy, see Benjamin, 4tomic Power,The SpreadofNuclear TechnologyHoldsPromiseandPerilforDeveloping World ,Wash. Post, Dec. 3 , 1978 , at Al, col. 2; Benjamin, Building. 4tomPlants . "It'sa Bit Scary,'Wash . Post, Dec. 4 , 1978 , at Al, col. 1; Benjamin, t's Hardto Keep Atom PlantsRunning Without Parts ,Wash. Post, Dec. 4 , 1978 , at A16, col. 1- 3 ; Benjamin, 'The Only ReactorProtectedby God, Wash. Post, Dec. 5 , 1978 , at A16, col. 1. See also note 181 supra.
29 See text accompanying notes 259-345 infra. Con=. on ScienceandTechnology, 95th Cong., 2d Sess . 40 ( 1978 ) (statement of Milton Levenson) (1000 years) [complete hearings hereinafter cited as MeCormack 1978 Hearings] .
It may be noted that two fission product isotopes , iodine-129 and technetium-99 , are excep-
69 EPA STUDY, note 60 supra;FORD-MITRE STUDY, supranote 1 , at 256-58 ; IRG SUBGROUP REPORT, supra note 39 , at app. A, 37 ; Glenn 1978 Hearings,supra note 47, at 76 (statement of Charles Hebel).
70 DOE COMMERCIAL WASTE MANAGEMENT DRAFT EIS, supranote 1 , at 3.1. 160 , 3 .1.163.
71 See, eg., DOE COMMERCIAL WASTE MANAGEMENT DRAFT EIS, supra note 1, at 3 .1.73; FORD-MITRE STUDY , supranote 1 , at 262; NEA GROUP REPORT, supra note 58, at 66; ROYAL COMMISSION REPORT, supra note 1 ,-at 81; Glenn 1978 Hearings,supranote 47 , at 77 , 104 (testimony of Charles Hebel and Dr . Philip M. Smith ).
The costs of permanent disposal of nuclear wastes are thought to be relatively modest, amounting to approximately .5 mills per kilowatt hour by one estimate, in comparison to nuclear power generation costs of between 25 and 35 mills per kilowatt hour (of which approximately 6 mills per kilowatt hour are attributable to all nuclear fuel cycle costs) . DOE COMMERCIAL WASTE MANAGEMENT DRAFT EIS, supranote 1,at 1 .22. See also FORD-MITRE STUDY , supra note 1, at 122 (direct spent fuel disposal would cost .4 mills per kilowatt hour).
72 EPA STUDY, note 60 supra;IRG SUBGROUP REPORT, supra note 40 , at app. A; Glenn 1978 Hearings,supra note 47 , at 102 (statement of Philip Smith) .
73 FORD-MITRE STUDY , supranote 1 , at 263-64 ; IRG REPORT, supranote 1 , at introduction; M. WILLRICH & R. LESTER, note I supra.
74 See generally K. HARMON, SUMMARY OF NATIONAL AND INTERNATIONAL RADIOACTIVE WASTE MANAGEMENT PROGRAMS (EXCLUDING UNITED STATES ) ( 1978 ); IRG REPORT, supra note 1 , at app. G [hereinafter cited as Appendix G].
75 Appendix G , supra note 74, at 1.
76 See, e.g., DOE DOMESTIC SPENT FUEL STORAGE DRAFT EIS, supra note 41 , at 11-2; IRG