Nuclear Waste Disposal: An International Legal Perspective

Northwestern Journal of International Law & Business, Dec 1979

As the world contends with an energy shortage, the development of alternative sources of energy has become a critical problem. Nuclear power is both an obvious and controversial alternative to traditional fossil fuels. Associated with the use of nuclear power is the important question of nuclear waste disposal. In this article, Messrs. Shields and Spector discuss the nuclear fuel cycle, bring together a survey of how countries around the world are dealing with the question of nuclear waste disposal both domestically and on an international level, and make suggestions for a more aggressive international regulation of nuclear waste disposal.

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

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: Recommended Citation - Commons Nuclear Waste Disposal: An International Legal Perspective LeonardS. Spector* 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 plants. 14 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 perspective. 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 nuclear wastes. 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 infra. 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 encouraged. 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 irreducible problem. 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 elec39 tricity. 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 under development. 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, 1978) . 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. Id 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: HWR's Operating Under Construction Argentina Canada India Korea Pakistan 1 8 1 0 1 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 REPORT]. 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 REPORT]. 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 isolation from man. The high inherent toxicity of post-fission wastes and their extraordinary longevity 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 supra. 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 repository. Potential Disruptive Phenomena for Waste Isolation Repositories Natural Processes 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 Man-Caused Events (cont.) Storage of Hydrocarbon or Compressed Air Intentional Intrusion: War Sabotage Waste Recovery Perturbation of Ground Water System: Irrigation Reservoirs Intentional Artificial Recharge Establishment of Population Center Id. 1:569(1979) 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 supply. CURRENT PROGRAMS FOR THE DISPOSAL OF POST-FISSION NUCLEAR WASTES 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. NationalPrograms 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 proceed.8 ' 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 21, 1979 ); 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 facilities." 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. 8, 1974 ). 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 INFCIRC/143. 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. 1:569(1979) safety issuances.324 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 disposal program.3 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 issues: 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 International Law & Business 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 338 cases. 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). 1:569(1979) 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 disadvantage. 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 vis-avis another. 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 considerable success.345 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. Northwestern Journal of International Law & Business 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 348 Id. 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 Annex I. 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 supra. 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 materials. 55 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 Protection Agency). 355 See, Statement of Clifton E. Curtis, note 353 supra. Statement of Dr. William D. Rowe, note 354 supra. 356 London Convention CANADAa India Pakistan Argentina South Korea FRANCE Belgium Spain Iran South Africa FR GERMANY Argentina Netherlands Austria Brazil Iran Spain Switzerland SWEDEN Finland UK Italy Japan xb NR x x x x x x x x 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 x x x x x x x x x x x x x x x x x x Source: 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 future. 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 359 Id. 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 years. 1:569(1979) 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 signatories. 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 11, 1976 ), 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. CONCLUSION 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 transboundary 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. 371 Id. 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 recipients. 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. InternationalTechnical Cooperation 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 practices. 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 266 supra. 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 International Law & Business 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 instrument.391 391 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 International Law & Business 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 16, 1979 ) (testimony of Charles Van Doren). 392 See text accompanying notes 357-61 supra. 393 Id. 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. 9 Id 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 ). 19 Id 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. 25 Id 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

This is a preview of a remote PDF:

Leonard S. Spector, Geoffrey B. Shields. Nuclear Waste Disposal: An International Legal Perspective, Northwestern Journal of International Law & Business, 1979,