Developing an Intergovernmental Nuclear Regulatory Organization: Lessons Learned from the International Civil Aviation Organization, the International Maritime Organization, and the International Telecommunication Union

Clarence Eugene Carpenter, Jr.

Bachelor of Science in Mechanical Engineering, May 1988 Seattle University, Seattle, WA Master of Science in Technical Management, May 1997 The Johns Hopkins University, Baltimore, MD Master of Arts in International Science and Technology Policy, May 2009 The George Washington University, Washington, DC

A Dissertation submitted to

The Faculty of The Columbian College of Arts and Sciences of The George Washington University in partial fulfillment of the requirements for the degree of Doctor of Philosophy

January 10, 2020

Dissertation directed by

Kathryn Newcomer Professor of Public Policy and Public Administration

The Columbian College of Arts and Sciences of The George Washington University certifies that Clarence Eugene Carpenter, Jr. has passed the Final Examination for the degree of Doctor of Philosophy as of November 26, 2019. This is the final and approved form of the dissertation.

Developing an Intergovernmental Nuclear Regulatory Organization: Lessons Learned from the International Civil Aviation Organization, the International Maritime Organization, and the International Telecommunication Union

Clarence Eugene Carpenter, Jr.

Dissertation Research Committee:

Kathryn Newcomer, Professor of Public Policy and Public Administration, Dissertation Director

Philippe Bardet, Assistant Professor, Committee Member

Emily Hammond, Glen Earl Weston Research Professor, Committee Member

ii

© 2020 by Clarence Carpenter All rights reserved

iii Dedication

For my wife and daughters. Finishing would not have been possible without you.

iv Acknowledgements

The author wishes to thank his Dissertation Director, Professor Katheryn Newcomer, for her encouragement and dedication; my dissertation committee members, Professors

Philippe Bardet and Emily Hammond; and, my defense committee chair and members,

Professors Michael Worth, Joseph Arleth, and William Adams. I also thank the faculty and staff of The George Washington University’s Columbian College of Arts and

Sciences for their support.

v Abstract

Developing an Intergovernmental Nuclear Regulatory Organization: Lessons Learned from the International Civil Aviation Organization, the International Maritime Organization, and the International Telecommunication Union

I suggested that global adherence to a common set of nuclear regulatory standards would improve nuclear safety, security, and safeguards world-wide. I proposed there is a need for a new autonomous, competent, and authorized nuclear oversight intergovernmental organization (IGO) that could support and augment the capabilities and competencies of national-level nuclear regulatory authorities (NNRAs) that oversee the safety and security of nuclear energy programs in their respective States. I examined three cases where

States readily accept such external assistance, specifically in the areas of civil aviation, maritime shipping, and telecommunications regulations, as well as multilateral environmental agreements and international standards, to determine if lessons learned from these case studies can be applied to developing the proposed nuclear oversight

IGO’s capability to support NNRAs in expanding their ability to oversee the safe and secure use of nuclear materials and energy in their respective States. I also examine the ability of three existing IGOs – the International Atomic Energy Agency (IAEA), the

OECD’s Nuclear Energy Agency, and the Nuclear Suppliers Group (NSG) – to provide for the future harmonization and normalization of nuclear regulatory practices world- wide. Finally, I examined various regional cooperative nuclear regulatory networks and a number of NNRAs. I determined that the proposed nuclear oversight IGO, while desirable, is simply not feasible, mostly for political reasons. I provided five recommendations and three areas for future research.

vi Table of Contents

Dedication ...... iv Acknowledgements ...... v Abstract ...... vi List of Figures ...... xii List of Tables ...... xiii 1 CHAPTER 1: INTRODUCTION ...... 1 1.1 Synopsis ...... 1 1.2 Background ...... 3 1.2.1 Uses of Nuclear Science and Technologies ...... 4 1.2.2 NNRA Overview ...... 8 1.2.3 Characteristics of an Effective NNRA ...... 11 1.2.4 Comparison of Existing NNRAs to Ideal ...... 13 1.3 Organizations Reviewed ...... 21 1.3.1 International Civil Aviation Organization ...... 24 1.3.2 International Maritime Organization ...... 26 1.3.3 International Telecommunication Union ...... 28 1.3.4 Other IGOs Examined...... 29 1.3.5 International Atomic Energy Agency ...... 29 1.3.6 Nuclear Energy Agency ...... 34 1.3.7 Nuclear Suppliers Group...... 36 1.3.8 Standards Developing Organizations ...... 40 1.3.9 Institute of Nuclear Power Operations ...... 44 1.3.10 World Association of Nuclear Operators ...... 46 1.3.11 Electric Power Research Institute ...... 48 1.4 Challenges of Adding Nuclear ...... 50 1.5 Nuclear Today ...... 52 1.5.1 Developed States ...... 59 1.5.2 Developing States ...... 60 1.5.3 Embarking States ...... 61 1.5.4 Russian Federation and PRC Nuclear Marketing ...... 65 1.6 Nuclear Governance ...... 66 1.6.1 Need for International Technical and Scientific Support Organization .....67

vii 1.6.2 Collaboration with Mature NNRAs ...... 68 1.6.3 Challenges with Indigenously-created Nuclear Regulatory Infrastructure 69 1.6.4 Benefits of Globally-Consistent Nuclear Regulatory Regime ...... 71 1.7 Categories of Existing NNRAs ...... 72 1.7.1 Category 1 NNRAs ...... 73 1.7.2 Category 2 NNRAs ...... 76 1.7.3 Category 3 NNRAs ...... 80 1.8 Early Attempts at Nuclear Governance ...... 87 1.8.1 Acheson-Lilienthal Report and the Ba ...... 87 1.8.2 Establishment of the IAEA ...... 87 1.8.3 Subsequent Proposals...... 89 1.8.4 Proliferation Fears ...... 91 1.9 Options for Developing NNRAs ...... 94 1.9.1 Option 1 – Indigenously Created ...... 95 1.9.2 Option 2 – Assistance from Another NNRA ...... 95 1.9.3 Option 3 – Work with IAEA ...... 96 1.9.4 Regional Cooperative Nuclear Regulatory Networks...... 96 1.9.5 Thematic Cooperative Nuclear Regulatory Networks ...... 100 1.9.6 Option 4 – Contract the Development ...... 101 1.10 Nuclear Threats ...... 102 1.11 Impact of Past Nuclear Accidents ...... 109 1.11.1 The Response to the 1979 TMI-2 Accident ...... 109 1.11.2 The Response to the 1986 Chernobyl Disaster ...... 110 1.11.3 Response to the 2011 Fukushima Dai-ichi Accident ...... 111 1.12 Challenges from Diverse, and Divergent, Regulatory Oversight ...... 113 1.13 Need for a Global Regulatory Authority ...... 113 1.13.1 Existing Regulatory Models ...... 115 1.14 Research Questions Overview ...... 117 1.15 Research Questions ...... 121 1.16 Research Motivation ...... 121 1.17 Dissertation Outline ...... 124 2 Chapter 2: Literature Review ...... 125 2.1 Historical Overview of Nuclear Science and Technologies ...... 125 2.1.1 Synopsis of the Development of Nuclear Theory and its Applications ...127 2.1.2 The Weaponization of Nuclear Science ...... 136

viii 2.2 Militarization of Nuclear Energy ...... 146 2.2.1 U.S. Navy Reactor Program...... 147 2.2.2 U.S. Air Force Reactor Program ...... 149 2.2.3 U.S. Army Reactor Program ...... 151 2.2.4 Global Military Nuclear Reactor Programs ...... 152 2.3 Nuclear Proliferation Concerns ...... 156 2.3.1 Safeguards versus Development ...... 159 2.3.2 Acheson-Lilienthal Report and the Baruch Plan ...... 161 2.3.3 Atoms for Peace ...... 168 2.3.4 Nuclear Non-Proliferation Treaty ...... 171 2.3.5 Enrichment ...... 174 2.3.6 Szilárd Petition, Russell-Einstein Manifesto and Mainau Declaration ....175 2.3.7 “Proliferation-Resistant” Fuel Cycle ...... 177 2.4 Commercialization of Nuclear Energy...... 182 2.4.1 Types of Nuclear Reactors ...... 190 2.4.2 Nuclear Power in the U.S...... 193 2.4.3 Nuclear Power in U.S.S.R / Russian Federation ...... 225 2.4.4 Nuclear Power in Canada ...... 230 2.4.5 Nuclear Power in the U.K...... 232 2.4.6 Nuclear Power in France ...... 234 2.4.7 Nuclear Safety Issues ...... 235 2.5 Global Governance ...... 239 2.5.1 Accountability and Legitimacy ...... 242 2.5.2 Nuclear Governance...... 246 2.6 Other Governance Models ...... 252 2.6.1 International Civil Aviation Organization ...... 253 2.6.2 International Maritime Organization ...... 257 2.6.3 International Telecommunication Union ...... 259 2.6.4 Comparison of Governance Models ...... 261 2.7 Next Step ...... 261 3 Chapter 3: Research Model and Methodology ...... 262 3.1 Research Questions ...... 262 3.2 Overview of the Research ...... 263 3.3 Methodology Selected ...... 266 3.4 Data Collection ...... 267

ix 3.4.1 First Phase – Literature Review ...... 267 3.4.2 Second Phase – Informal Interviews...... 268 3.4.3 Third Phase – Direct Observations of Various NNRAs ...... 270 3.4.4 Data Collection and Analysis...... 271 3.4.5 Establishing Credibility ...... 272 3.4.6 Research Permission and Ethical Considerations ...... 273 3.4.7 The Role of the Researcher ...... 274 3.4.8 Limitations ...... 275 3.5 Summary of Research Methodology ...... 276 3.6 Tables 276 4 Chapter 4: Research Results ...... 286 4.1 Introduction ...... 286 4.2 Results ...... 287 4.2.1 Examination of Specialized UN Agencies – ICAO, IMO, and ITU ...... 287 4.2.2 Examination of IAEA and NEA ...... 294 4.2.3 Examination of NNRAs ...... 300 4.3 Conclusions ...... 305 5 Chapter 5: Conclusions and Recommendations ...... 307 5.1 Summary ...... 307 5.1.1 First Question ...... 308 5.1.2 Second Question ...... 314 5.2 Conclusion ...... 316 5.3 Recommendations ...... 317 5.3.1 Recommendation 1: Expand Regional Cooperative Nuclear Regulatory Networks ...... 318 5.3.2 Recommendation 2: Develop an International Technical and Scientific Support Organization ...... 319 5.3.3 Recommendation 3: Create Permitting Requirements for Nuclear Recognized Organizations ...... 320 5.3.4 Recommendation 4: Increase Secondment Opportunities between NNRAs ...... 320 5.3.5 Recommendation 5: Reorganize IAEA to Separate Promotional Activities from Regulatory and NPT Duties ...... 321 5.4 Areas for Further Research ...... 322 5.4.1 Area 1: Research into Developing a Consistent Legal Model to Authorize NNRAs ...... 322

x 5.4.2 Area 2: Research into How to Develop a Technology-Neutral/- Appropriate Regulatory Framework ...... 323 5.4.3 Area 3: Research in Updating the Convention on Nuclear Safety...... 324

xi List of Figures

Figure 1-1: Number of Civilian Nuclear Power Reactors by Country and Status ...... 57

Figure 1-2: Timeline of installed/commissioned, and permanently shutdown/decommissioned nuclear power plants per year and State, with net addition/subtraction and significant accidents...... 58

Figure 1-3: Estimated Global Nuclear Warhead Inventories ...... 94

Figure 1-4: IAEA International Nuclear Events Scale ...... 104

Figure 2-1: Periodic Table of the Elements ...... 129

Figure 2-2: Key Manhattan Project Facilities ...... 146

Figure 2-3: Nuclear Fuel Cycle ...... 177

Figure 2-4: National Nuclear Power Program Startup and Phase-out ...... 188

Figure 2-5: Nuclear Reactors Under Construction ...... 189

Figure 2-6: Evolution of Commercial Nuclear Reactors by Generation ...... 192

xii List of Tables

Table 1-1: Member States of the Nuclear Suppliers Group ...... 38

Table 1-2: World Nuclear Reactors ...... 56

Table 1-3: States Being Offered Technical and Financial Assistance to Construct NPPs by Russian Federation and/or PRC ...... 66

Table 1-4: Three Categories of NNRAs ...... 73

Table 1-5: NNRAs that Oversee a Nuclear Energy Industry Owned, Either Wholly or in Majority, by the National Government ...... 86

Table 1-6: Examples IAEA International Nuclear and Radiological Event Scale Accidents ...... 106

Table 2-1: Non-Proliferation Treaties ...... 177

Table 3-1: Overview of Methodology ...... 277

Table 3-2: Topics for Discussion – Strengths and Weaknesses of the ICAO, IMO and ITU...... 278

Table 3-3: Topics for Discussion – Survey of the Strengths and Challenges of Existing Nuclear Regulatory Regimes ...... 281

Table 3-4: Topic for Discussion – Efficacy and Efficiency of Existing Means for Nuclear Regulators to Cooperate ...... 282

Table 3-5: Interviewees ...... 285

xiii 1 CHAPTER 1: INTRODUCTION

This chapter presents (1) a description of the background for the public policy problem addressed; (2) the research questions; (3) a discussion of the motivation for the dissertation; and, (4) a description of subsequent chapters.

1.1 Synopsis

This dissertation posits that there is a need for a new autonomous, competent, and authorized nuclear oversight intergovernmental organization (IGO), distinct from the existing IGOs of the International Atomic Energy Agency (IAEA) and OECD’s Nuclear

Energy Agency (NEA), which will support and augment the capabilities and competencies of National-level Nuclear Regulatory Authorities (NNRAs) that oversee the safety and security of nuclear energy programs in their respective States. This proposed IGO would also facilitate and promote the expansion of capabilities of NNRAs in States that are in the process of, or are considering, adding a nuclear energy component to their electrical infrastructure. I suggest that this proposed IGO have two complementary functions:

1) Develop and maintain a technology-neutral/technology-appropriate nuclear

regulatory framework, including well-researched and validated standards and

regulations, which could harmonize and normalize utilized regulatory regimes

globally; and,

2) Conduct in-depth critical reviews of the ability of each member State’s NNRA to

provide effective and adequate safety and security oversight of their respective

commercial nuclear industries.

1 Participation in such an IGO could support the global development of a consistent and predictable system for the effective and efficient governance of nuclear safety and security such that all NNRAs would better be able to provide adequate oversight of the safety, security, and use of nuclear-related facilities, equipment, technologies, and materials in their respective States at levels consistent with those found in more mature and better-resourced NNRAs, such as those in the United States, France, and Japan. Full engagement with such an IGO by the various NNRAs could provide greater assurance to each participating State’s leadership and its citizenry, as well as their global neighbors, such that the participating State’s NNRA would be able to provide reasonable assurance that the civilian nuclear activities and industries the NNRA oversees meet minimum global standards for safety and security.

In this dissertation, I examine three cases where States readily accept such external assistance, specifically in the areas of civil aviation, maritime shipping, and telecommunications regulations, as well as multilateral environmental agreements and international standards, to determine if lessons learned from these case studies can be applied to developing the proposed IGO’s capability to support NNRAs in expanding their ability to oversee the safe and secure use of nuclear materials and energy in their respective States. I also examine the ability of three existing IGOs – the IAEA, NEA, and the Nuclear Suppliers Group (NSG) – to provide for the future harmonization and normalization of nuclear regulatory practices world-wide.

This dissertation specifically focuses on the challenges presented by Developing

States that have, or are adding, a nuclear energy component to their electrical infrastructure, and the needs of their NNRAs to better perform oversight of non-military

2 uses of nuclear technologies and materials in general, and electrical production in specific, in order to reasonably ensure that the overseen entities are taking reasonable and prudent actions to prevent or mitigate the effects of natural or man-made accidents, and to prevent or mitigate nuclear proliferation. However, this dissertation does not specifically focus on military or other inimical applications of nuclear technologies and materials, nor does it focus on nuclear liability issues.

For the purposes of this dissertation, it is understood that activities to improve safety will need to appropriately consider the security implications of these activities. It is recognized that ensuring safety and security are complementary activities since any steps taken to improve one can impact – sometimes negatively – the other. As such, unless specifically demarcated, discussions about safety presumes a consideration of the security implications.

1.2 Background

This section provides a brief description of the uses of nuclear science and the associated technologies, including: the benefits and negative aspects; an overview of several existing NNRAs; a brief description of the characteristics of an effective NNRA; and, a comparison of representative NNRAs to an ideal effective NNRA, with clarifying examples.

This dissertation defines a State (1) using the 1933 Montevideo Convention’s declarative theory as “an entity that has a defined territory and a permanent population,

1 The United Nations (UN) currently has 193 Member States and two Non-member Observer States – the Holy See (Vatican City) and the State of Palestine. The Republic of China (Taiwan) is not currently a UN Member State, but is recognized in this dissertation as a State.

3 under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities” (Grant 1998). “Nation” and

“country” may be used as synonyms for “State” in this dissertation; and, “national-level” refers to the top tier in a ranking of administrative divisions within a State, while “sub- national-level” refers to a lower tier.

1.2.1 Uses of Nuclear Science and Technologies

Nuclear reactions are literally as old as the universe itself; indeed, absent nuclear reactions, the universe would not exist. English chemist John Dalton is credited with developing modern atomic theory in 1803, and the Atomic Era officially began (2) on

December 2, 1942, when the first man-made sustained nuclear fission chain-reaction was achieved in Chicago Pile-1 (CP-1). Subsequent advances made in nuclear sciences, and the associated applied technologies, have provided both a promise for a better today and a threat of impending catastrophe, depending on the application and the degree of oversight provided. Examples of the various benefits offered by the peaceful commercial applications of nuclear sciences and technologies include:

2 Alternative dates include November 8, 1895, when Wilhelm Röntgen first produced electromagnetic radiation (Röntgen rays or X-rays); February 27, 1896, when Henri Becquerel first described evidence of natural radioactivity in uranium; May 1898, when Marie and Pierre Curie published a paper describing polonium, the first element to be identified solely by its strong radioactivity; September 12, 1933, when Leo Szilard posited, six years before the discovery of fission, the possibility of using a chain reaction of neutron collisions with atomic nuclei to release energy; January 1934, when Irène Joliot-Curie and Frédéric Joliot announced that they had bombarded elements with alpha particles and induced radioactivity in them; March 25, 1934, when Enrico Fermi announced the discovery of neutron-induced radioactivity and the production of transuranic elements (Ida Noddack corrected Fermi’s error in a September 1934 paper that argued the anomalous radioactivity produced was due to the atom splitting into smaller pieces); December 17, 1938, when Otto Hahn and Fritz Strassmann discovered nuclear fission of heavy elements, which was explained theoretically in January 1939 by Lise Meitner and her nephew Otto Robert Frisch, coining the term “fission”; or, on July 16, 1945, with the detonation of the first nuclear weapon.

4 o a virtually limitless supply of relatively inexpensive energy that does not produce

greenhouse gases;

o medical applications that prolong and save lives;

o agricultural uses that can help ensure the safety of food, support creating new

agricultural products, and assist in the eradication of harmful insects; and,

o industrial uses ranging from early detection of material defects, to aiding in

mining and construction, and detecting smoke in time to warn of a fire. (IAEA,

2012)

Negative aspects include:

o poisoning large areas from inadvertent releases, such as seen following the 1986

Chernobyl and 2011 Fukushima Dai-ichi nuclear power plant accidents, and the

1957 explosion at the Mayak plutonium production site (3);

o improper disposal of radioactive and contaminated materials, such as seen with

the improper disposal of orphan sources like the 1987 Goiânia accident, the 2010

Mayapuri accident, and incidents from common goods made from radioactive

metal (4);

3 Also known as the Kyshtym disaster, this accident spread contamination over 52,000 square kilometres (20,000 sq mi), which is now known as the East Urals Radioactive Trace (EURT). 4 The Goiânia, Brazil, accident was the result of an orphaned source – radioactive material that is no longer under proper regulatory control – being pilfered from an abandoned hospital, and subsequently opened. The exposure to the radioactive material resulted in four deaths, and 249 of the some 112,000 examined for contamination were found to have significant levels of radioactive material in or on their bodies. International Atomic Energy Agency (1988) The Radiological Accident in Goiânia (ISBN 92-0-129088-8) The Mayapuri, India, accident resulted from the sale of a research irradiator, owned by Delhi University, as scrap metal. The orphan source, containing cobalt-60, was dismantled and cut into eleven pieces, with the smallest fragment kept by one of the workers, who subsequently died. Seven people were treated for radiation exposure.

5 o inadvertent industrial exposures, such as seen by the “Radium Girls” (5); and,

o inimical uses of nuclear materials, either in “dirty bombs” or actual nuclear

weapons (6).

In addition, there have been a significant number of releases from military nuclear-related activities, including the global contamination of the biosphere from the over 2,100

IAEA (2015) Safety and Security of Radioactive Sources: Maintaining Continuous Global Control of Sources throughout Their Life Cycle, Proceedings of an International Conference, Abu Dhabi, United Arab Emirates 27–31 October 2013 (ISBN 978–92–0–105214–8) In 1998, La-Z-Boy recliners were found to be made with contaminated metal. Between 2003 and 2008, the U.S. Department of Homeland Security denied entry to more than 120 contaminated shipments. In 2012, stainless steel pet food bowls sold by Petco were discovered to be made from contaminated metal, as were metal tissue boxes sold by Bed, Bath & Beyond. In 2013, U.S. Customs detected high radiation levels in metal-studded belts sold by online retailer ASOS.com. Bittel (May 29, 2013) “These Belts Are Hot (Because They’re Made From Radioactive Scrap Metal)”; Slate 5 Some 4,000 female factory workers who, from 1917 to 1926, contracted radiation poisoning from painting watch dials with self-luminous paint made from radium, with over 50 women dying as a result. Others suffered from anemia, bone fractures, and necrosis of the jaw, a condition now known as radium jaw. Moore (2017) The Radium Girls, The Dark Story of America's Shining Women (ISBN 1471153878) 6 Also known as a radiological dispersal device (RDD), a dirty bomb is a conventional explosive with radioactive materials included to produce very localized damage but wide-spread terror. Dirty bombs are not weapons of mass destruction (WMD), like nuclear weapons, but rather weapons of mass fear. It should be noted that, to date, there has been only two hostile uses of nuclear weapons – the August 6 and 8, 1945, bombings of the Japanese cities of respectively, Hiroshima and Nagasaki – and no instances of RDD use; however, there are multiple occurrences of thwarted attempts to procure the materials for constructing an RDD. For example, in 2002, José Padilla (a.k.a. Abdulla al-Muhajir), a U.S. citizen, was arrested on suspicion that he was an Al-Qaeda terrorist planning to detonate an RDD in the U.S. In 2006, U.K. citizen Dhiren Barot pled guilty of conspiring to murder using an RDD. In 2009, Ukraine’s Security Service (SBU) made arrests in a plot to sell radioactive materials for use in RDDs. Terrorist organizations around the world are actively seeking to acquire the materials necessary to construct an RDD. USA Today (June 11, 2002) “U.S. citizen arrested in 'dirty bomb' plot”; https://usatoday30.usatoday.com/news/nation/2002/06/10/terror-arrest.htm BBC News (October 12, 2006) “Man admits UK-US terror bomb plot”; http://news.bbc.co.uk/2/hi/uk_news/6044938.stm Xinhua (April 15, 2009) “Three arrested in Ukraine for trying to sell radioactive material”; https://web.archive.org/web/20150904060636/http://news.xinhuanet.com/english/2009- 04/15/content_11186744.htm Foreign Policy (August 16, 2019) “White Supremacists Want a Dirty Bomb”; https://foreignpolicy.com/2019/08/16/white-supremacists-want-a-nuclear-weapon/

6 detonations of nuclear weapons for the purposes of testing or demonstrations between

1945 and 2018 (7), and from accidents and releases at military-related nuclear production facilities such as the multiple fires at the now closed Rocky Flats Plant, located outside of

Denver, Colorado, and the releases of millions of pounds of uranium dust into the atmosphere from the shuttered Fernald Feed Materials Production Center near New

Baltimore, Ohio, between 1951 and 1989 (8).

Virtually every State routinely employs nuclear materials and technologies for medical and other commercial uses. Non-energy-related nuclear technologies have enjoyed wide-spread acceptance, mainly based on their demonstrable benefits outweighing potential consequences. The benefits of nuclear medicine in diagnosing and treating patients, if done in accordance with established safety procedures (9), far

7 Arms Control Association (2019) “The Nuclear Testing Tally”; https://www.armscontrol.org/factsheets/nucleartesttally 8 The Rocky Flats Plant fabricated plutonium pits – the core of a nuclear weapon – and other nuclear weapon parts between 1952 and 1989, when production was halted following a raid of the facility by agents from the U.S. Environmental Protection Agency (EPA) and the Federal Bureau of Investigation (FBI) arising from criminal violations of environmental law. A 1999 report by the Colorado Department of Public Health and Environment found that laborers living adjacent to the plant between 1953 and 1989 had up to a 1 in 10,000 risk of developing cancer from occupational exposures, combined with exposures from the various unapproved releases; however, the average resident of Colorado had a 21% chance of dying from cancer, so the effects were negligible. Colorado Department of Public Health and Environment (1999) “Summary of Findings – Historical Public Exposure Studies of Rocky Flats”; https://www.colorado.gov/pacific/sites/default/files/HM_sf-rocky-flats- smry-indings-hist-pub-exposure-studies-bklt-1999.pdf The Fernald Feed Materials Production Center, from 1951 to 1989, refined uranium ore into metal, which was then fabricated into target elements for plutonium production reactors. In producing these targets, the National Lead Company of Ohio (NLO), the contractor who operated the Center, released uranium dust and various other hazardous chemicals into the environment, causing significant contamination of the surrounding region. New York Times (October 15, 1988) “U.S., For Decades, Let Uranium Leak at Weapon Plant”; https://www.nytimes.com/1988/10/15/us/us-for-decades-let-uranium-leak-at-weapon-plant.html 9 According to the World Health Organization’s (WHO) 2008 “Radiotherapy Risk Profile,” which reviewed reported radiation therapy incidents between 1976 and 2007, there were 3,125 patients affected with adverse events, of which there were 38 reported fatalities. Between 1992 and 2007, there were 4,616 “near misses” (incident that did not cause harm). Two particularly egregious examples of medical misadministration events include the falsification

7 outweighs the negligible risks associated with irradiating living tissue. Radiography, a nuclear technology that examines materials for flaws in order to prevent catastrophic failures, is utilized world-wide. Likewise, while some may protest irradiating foods (10) based on a mistaken belief that doing so will create harmful chemicals, the advantages of being able to preserve food for extended periods has been repeatedly established.

1.2.2 NNRA Overview

Presently, since most States make use of nuclear materials and technologies, virtually all of these States have some form of an NNRA that provides some degree of oversight over this usage with the goal of ensuring the safety of the public, the worker, and the environment. Moreover, the vast majority of existing NNRAs are in States without nuclear energy programs, and the NNRAs in these States are consequently focused on regulating the industrial and medical uses of nuclear materials and technologies.

For those States with nuclear energy portfolios, some have national-level nuclear regulatory authorities charged with ensuring safety, while others provide regulatory authority to the sub-national-level, depending on the enabling legislation. For instance,

of records to conceal the improper calibration of a Cobalt-60 teletherapy unit at the Riverside Methodist Hospital in Columbus, Ohio, over a 22-month period in 1974-1976, which resulted in 10 fatalities and 78 injuries; and, procedural violations coupled with improper maintenance and calibration of a radiotherapy accelerator at the Zaragoza Clinical University in Zaragoza, Spain, in 1990 resulted in 18 fatalities and nine major disabilities. Johnston (2007) “Columbus radiotherapy accident, 1974-1976”; http://www.johnstonsarchive.net/nuclear/radevents/1974USA2.html Johnston (2007) “Zaragoza radiotherapy accident, 1990”; http://www.johnstonsarchive.net/nuclear/radevents/1990SPA1.html 10 “Food irradiation (the application of ionizing radiation to food) is a technology that improves the safety and extends the shelf life of foods by reducing or eliminating microorganisms and insects. Like pasteurizing milk and canning fruits and vegetables, irradiation can make food safer for the consumer.” U.S. Food and Drug Administration; “Food Irradiation: What You Need to Know”; September 3, 2015; http://www.fda.gov/Food/ResourcesForYou/Consumers/ucm261680.htm; accessed December 12, 2015

8 in Germany the Federal Ministry for the Environment, Nature Conservation and Nuclear

Safety (Bundesministerium für Umwelt, Naturschutz und nukleare Sicherheit – BMU) is the national-level body responsible for overseeing the licensing and supervisory activities of the sub-national-level authorities. In the United States (U.S.), the U.S. Nuclear

Regulatory Commission (USNRC) (11) is the statutory authority charged with overseeing all civilian uses of nuclear materials and technologies, but can relinquish authority to license and regulate materials used for industrial and medical purposes to “Agreement

States.” (12)

Ensuring safety is generally taken to mean that the likelihood of a credible (13) accident is minimized to the degree practicable through ensuring that the facility’s initial design takes into consideration: the best available knowledge gained from research, prior operating experience, and current technical standards; that state-of-the-art construction methods are utilized to construct a robust facility; and, that the facility is operated and maintained in a vigilant and questioning manner. Further, if an incident does occur, licensed operators must act to ensure that any consequences are mitigated so as to minimize the release of significant amounts of radioactive material to the environment and reduce overall radiation exposure for facility workers and the public.

11 The U.S. Nuclear Regulatory Commission is the federal-level nuclear regulator established by the Energy Reorganization Act of 1974 to ensure adequate protection of the public health and safety, the common defense and security, and the environment in the use of nuclear materials in the U.S. 12 Section 274 of the Atomic Energy Act of 1954, as amended, provides for this transfer; however, the USNRC may unilaterally revoke this transfer under the provisions of subsection 274.j. USNRC (2013) NUREG-0980, Vol. 1, No. 10, Nuclear Regulatory Legislation; https://www.nrc.gov/docs/ML1327/ML13274A489.pdf 13 Credible is used in this dissertation to mean that the probability of occurrence is greater than some bound, e.g., once in a million years, that has been determined to be reasonable and likely to occur. Non-credible accidents and events are typically determined by a probabilistic examination, and are not factored into the design of a facility.

9 While only 31 States presently have nuclear energy programs and operate nuclear power plants (NPP (14)), seventeen States are currently adding a nuclear energy component to their national electrical system, and at least another thirty States are either developing nuclear energy plans or are seriously discussing nuclear energy as a policy option (15) (see Table 1-2: World Nuclear Reactors). For those States with nuclear energy programs, the capabilities and authorities that their individual NNRAs possess to ensure the safety, security, and safeguards (16) of these nuclear energy programs range from virtually non-existent at the lowest end of the range to those having sufficient funding, technically competent staffing, and de jure and de facto legal jurisdiction. For those

States presently adding or considering nuclear energy, their NNRAs are correspondingly less capable.

14 A Nuclear Power Plant (NPP), also known as an “atomic power plant,” “nuclear [or atomic] power site,” “nuclear [or atomic] generating station,” or – in the Russian Federation – an AES (атомная электростанция, atomnaya elektrostantsiya), is the facility that includes at least one nuclear power reactor intended for commercial use. NPPs can have one or multiple nuclear reactors (also known as “units”), which are normally differentiated by being numbered (with or without the word “Unit”), e.g., V.C. Summer 2, Beloyarsk 4. The total number of reactors in a country is commonly referred to as a “fleet”, a legacy of one of the initial uses of nuclear reactors to power military naval vessels. For the purpose of this dissertation, “NPP” and “reactor” may be used interchangeably, unless a specific nuclear reactor is discussed, e.g., Three Mile Island 2 (TMI-2), Chernobyl Unit 4. 15 Three States – Italy, Kazakhstan, and Lithuania – had operating nuclear power plants (NPPs) and have subsequently ceased operations; however, both Kazakhstan and Lithuania are planning to build new NPPs. Four other States – Austria, Cuba, Poland, and the Philippines – began construction but never operated their NPPs. 16 The IAEA defines safety as “preventing accidents,” while security is “aimed at preventing intentional acts that might harm the facility or result in the theft of nuclear materials.” “Safeguards” refers to activities intended to ensure the non-proliferation of weaponizable nuclear technologies; however, for the purposes of this dissertation, “security” will also encompass safeguards-related activities unless specifically stated otherwise. IAEA (2018) Safety and security culture; https://www.iaea.org/topics/safety-and-security-culture

10 1.2.3 Characteristics of an Effective NNRA

Academics, policy-makers, and various organizations, including the IAEA and NEA, have sought to codify what characteristics are necessary for an NNRA to be an effective regulator, especially of nuclear energy. These attributes were succinctly described by the

NEA:

In summary, an effective nuclear regulator:

 is clear about its regulatory roles and responsibilities, its purpose, mandate and

functions;

 has public safety as its primary focus;

 has independence in regulatory decision making from any undue influence on the

part of the nuclear industry and those sectors of government that sponsor this

industry;

 has technical competence at its core, with other competencies built upon this

fundamental and essential requirement;

 is open and transparent in its regulations and decisions;

 has a regulatory framework and requirements that are clear and easily understood

by all stakeholders;

 makes clear, balanced and unbiased decisions, and is accountable for those

decisions;

 has a strong organizational capability in terms of adequate resources, strong

leadership and robust management systems;

11  performs its regulatory functions in a timely and efficient manner;

 has and encourages a continuous self-improvement and learning culture, including

the willingness to subject itself to independent peer reviews.

 A regulator with the above characteristics should be effective in ensuring that

nuclear facilities are operated at all times in a safe manner, in accordance with

international safety principles and with full respect of the environment. (NEA

2014 (17))

Based on the attributes listed by the NEA, an NNRA’s key characteristic – identified by virtually all who have studied this field – is that the NNRA should have the necessary authority, both de jure and de facto, to provide reasonable assurance that nuclear materials and technologies are being used safely and securely, including being able to legally order a shutdown of operations if deemed necessary to protect the public’s health and safety, and the environment. As such, in order to be trusted with this authority, it follows that an NNRA needs to: (1) have appropriate political independence of action to carry out its regulatory and oversight duties; (2) be sufficiently funded and staffed to perform all necessary activities within its statutory mandate; and, (3) it must be seen as an impartial and technically capable advocate for safety and security.

17 NEA (2014) “The Characteristics of an Effective Nuclear Regulator”; Green Booklet No. 7185; https://www.oecd- nea.org/nsd/docs/2014/cnra-r2014-3.pdf

12 1.2.4 Comparison of Existing NNRAs to Ideal

Of the 31 States that currently have nuclear energy programs, my research found that, while all NNRAs are capable of performing their safety oversight duties, at least marginally so, there is not a single NNRA that meets all of the above requirements to be a fully effective regulator. Specifically, the challenges impacting the ability of NNRAs to be a fully effective fall into three categories: (1) they are funded and/or staffed, but are lacking sufficient resources to adequately and consistently perform their statutory responsibilities – all NRRAs fall into this category (18); (2) they lack clearly defined, and accepted, legal authority (19) to exercise their oversight functions – virtually all NNRAs, with the exceptions of the current NNRAs for Canada, Finland, France, Japan, and the

U.S., have this challenge; and, (3) a challenge that all NNRAs face, the ongoing struggle to maintain public trust in their impartiality.

I classify the NNRAs in Armenia, Pakistan, and Argentina as marginally effective.

18 The USNRC has been, on continues to be, an example of how the U.S. Congress’ “power of the purse” has driven its oversight program, from the so-called “near-death experience” in the late 1990’s when members of Congress threatened to cut the USNR’s operating budget by a third if substantive changes to the USNRC’s operating philosophy weren’t immediately forthcoming; sufficient changes were made to appease Congress and the budget was passed. Budget threats were also made over the licensing of the proposed Yucca Mountain nuclear waste repository, to prevent the USNRC from fulfilling its statutory responsibilities under the Nuclear Waste Policy of 1982; as a consequence, the USNRC did not complete its review. Most recently, budget cuts are forcing the USNRC to scale back their NPP oversight. Magwood (2011) “Regulating a Renaissance: Adapting to Change in a Globalized, Environmentally-Conscious, Security-Focused and Economically-Uncertain Century”; USNRC; https://www.nrc.gov/docs/ML1109/ML110940385.pdf 19 NNRAs in States with a federalized nuclear energy program, such as France and Canada, have additional challenges in ensuring that their legal autonomy is upheld.

13 Armenia’s State Committee under the Government of Armenia on Nuclear Safety

Regulation (ANRA (20)), was established in 1993 to regulate nuclear and radiation safety.

ANRA reports to the President and Prime Minister of the Republic of Armenia (RA), and is nominally independent of agencies that promote the uses of nuclear materials and technologies. However, in comparison to other similar NNRAs, ANRA is under- resourced, with a 2017 budget of approximately US$543,100, and only 27 professional technical staff out of a total of 43 positions, which necessitates its reliance for technical competency on the Nuclear and Radiation Safety Center (NRSC), an indigenous technical and scientific support organization (21), and foreign regulators, i.e., Russia’s

Rostekhnadzor (22), Belarus Republic’s Department of Nuclear and Radiation Safety (23),

20 Originally the Armenian Nuclear Regulatory Authority, in 2008 the regulator was reorganized and renamed, but the acronym “ANRA” was retained. 21 The IAEA defines a Technical and Scientific Support Organization (TSO) as “an organization or organizational unit designated, or otherwise recognized by a regulatory body and/or a government, to provide expertise and services to support nuclear and radiation safety and all related scientific and technical issues, to the regulatory body.” TSOs typically are staffed by experienced subject matter experts who provide technical and scientific services and advice to NNRAs, and sometimes the nuclear industries in the State, to assist them in ensuring safety and security in the use of nuclear materials and technologies. IAEA (2018) Technical and Scientific Support Organizations Providing Support to Regulatory Functions, IAEA-TECDOC-1835 22 Reporting to the Government of the Russian Federation, Rostekhnadzor, the Federal Service for Environmental, Technological, and Nuclear Oversight, is the State body that licenses nuclear facilities, issues equipment permits, and regulates the safety of nuclear energy use. It was created in 2004 by the merger of the Federal Nuclear Oversight Service (Gosatomnadzor), the Federal Service for Technological Oversight, and the environmental oversight functions of the Federal Service for Oversight of the Environment and the Use of Nature. 23 A subdivision of the Ministry for Emergency Situations of the Republic of Belarus, the Department of Nuclear and Radiation Safety is delegated functions of licensing activities concerning nuclear energy and ionizing radiation sources use.

14 the State Nuclear Regulatory Inspectorate of Ukraine (24), and the USNRC, to supplement its ability to effectively perform its mission (Armenia CNS 2016 (25)).

Pakistan’s Nuclear Regulatory Authority (PNRA) was formed in 2001 as a successor to the Pakistan Atomic Energy Commission’s (PAEC (26)) former Directorate of Nuclear

Safety and Radiation Protection (DNSRP), when the PAEC was integrated into the

National Command Authority (27). PNRA is responsible for licensing and oversight, and regulates the safety and security of all civilian nuclear materials and facilities. Like

ARNA, PNRA is also under-resourced; but, more critically, Pakistan has been implicated in nuclear weapons technology trafficking to Libya and the Democratic People’s

Republic of Korea (DPRK, North Korea) (28), and its civilian and military nuclear programs remained tightly linked (29). It is a matter of ongoing speculation as to PNRA’s

24 The State Nuclear Regulatory Inspectorate of Ukraine (Державна інспекція ядерного регулювання України, SNRI), formerly the State Nuclear Regulatory Committee of Ukraine, is the Ukrainian successor agency to Gosatomnadzor, following the dissolution of the U.S.S.R., and is responsible for nuclear safety. 25 Convention on Nuclear Safety, 7th National Report; Prepared by Government of Republic of Armenia for Seventh Review Meeting in March/April 2017 August 2016; https://www- ns.iaea.org/downloads/ni/safety_convention/7th-review-meeting/armenia_nr-7th-rm.pdf 26 The PAEC was established in 1956 to oversee the research and development of nuclear power, promotion of nuclear science, and following Pakistan’s loss in the Indo-Pakistani War of 1971, the research and development of nuclear weapons. PAEC operates Pakistan’s nuclear power plants. 27 The PNCA was established in 2000 to oversee the employment, policy formulation, exercises, deployment, research and development, and operational command and control of Pakistan's nuclear arsenal. 28 Powell & McGirk (2005/02/14) “The Man Who Sold the Bomb; How Pakistan's A.Q. Khan outwitted Western intelligence to build a global nuclear-smuggling ring that made the world a more dangerous place”; Time Magazine, p. 22. 29 “Unlike India, Pakistan has barely separated its civil and military nuclear facilities and in general remains highly secretive about its nuclear program. The opaqueness of Pakistan’s nuclear program, its expanding nuclear weapons arsenal, and its refusal to separate its military and civilian nuclear program are cited as reasons by many countries opposing Pakistan’s membership into the Nuclear Suppliers Group (NSG), as well as any country supplying it with additional nuclear power reactors or other fuel cycle facilities or capabilities.” Albright, Burkhard, Pabian (2018) “Pakistan’s Growing Uranium Enrichment Program”; Institute for Science and International Security; http://isis-online.org/isis-reports/detail/pakistans-growing-uranium-enrichment- program/12

15 ability to provide adequate safety oversight of Pakistan’s civilian NPPs, which are being utilized to produce both electricity and weapons-grade nuclear materials, especially if there are safety concerns that would necessitate a shutdown of one of the facilities

(World Nuclear Association 2018-01).

Argentina’s Nuclear Regulatory Authority (Autoridad Regulatoria Nuclear, ARN) was formed in 1997 when regulatory authorities were separated from the National

Atomic Energy Commission (Comisión Nacional de Energía Atómica, CNEA (30)), along with the responsibility for constructing, managing, and operating the state-owned NPP, which now are the responsibility of the state-owned Nucleoeléctrica Argentina SA (NA-

SA) (31). Prior to this restructuring, the CNEA, created in 1950, was (and remains) charged with nuclear energy research and development. ARN, which reports to

Argentina’s President, is responsible for establishing, developing, and implementing a regulatory and supervisory system for nuclear activities performed in Argentina; and, in

2016 about 56% (264) of its total staff of 471 were engaged in assessments, inspections, and auditing activities in 2016, with an annual operating budget of approximately US$8- million. While ARN appears to be sufficiently staffed and funded to perform its

30 As part of a regional arms race in the 1970 and 1980’s, both Argentina’s CNEA and Brazil’s National Nuclear Energy Commission (Comissão Nacional de Energia Nuclear; CNEN) conducted secret nuclear weapon research programs, and both States gained the capacity for weapons-grade uranium enrichment; however, both States abandoned their nuclear weapons programs in the late 1980’s. In 1991, Argentina and Brazil were the first States to create a binational safeguards organization, the Brazilian– Argentine Agency for Accounting and Control of Nuclear Materials (ABACC; Portuguese: Agência Brasileiro- Argentina de Contabilidade e Controle de Materiais Nucleares; Spanish: Agencia Brasileño-Argentina de Contabilidad y Control de Materiales Nucleares), which takes an active role in verifying the peaceful use of nuclear materials that could be used, either directly or indirectly, to manufacture of weapons of mass destruction. 31 NA-SA is owned by Argentina’s Ministry of Finance (79%), CNEA (20%), and Binational Energy Enterprises (1%).

16 regulatory oversight duties, its independence is questionable since the nuclear industry has been strongly supported by the government since its inception.

The above three examples are especially relevant since these NNRAs are responsible for overseeing three of the arguably least safe nuclear power plants in the worlds –

Armenia’s Metsamor, Pakistan’s KANUPP-1, and Argentina’s Atucha I:

Metsamor (also known as Armenian Nuclear Power Plant, ANPP), is a two-unit 440- megawatt (MW (32)) Soviet Union (33) era VVER-440 (34), commissioned in 1976 (Unit 1) and 1980 (Unit 2), is operated by the state-owned utility CJSC HAEK (Closed Joint

Stock Company Armenian Atomic Power Plant). Metsamor was shut down due to seismic safety concerns following the magnitude 6.8 Spitak Earthquake in 1988, which resulted in as many as 50,000 fatalities and about 130,000 serious injuries. While the facility was reportedly designed to a withstand the impact of a magnitude 7.0 earthquake, it was subsequently discovered that the area where it was constructed could have earthquakes measuring up to magnitude 8.0, ten times the energy ANPP was built to withstand. Due to significant electricity shortages, in 1995 the Armenian government

32 A NPP’s energy output is typically measured in megawatts (i.e., million watts, MW) as either the amount of thermal (heat) energy produced (MWt), or the amount of electrical energy produced (MWe). MWe can be either

the gross (or “nameplate,” i.e., the design maximum output) electrical output (MWegross), or the net electrical

output, i.e., the amount of electricity actually supplied to the electrical grid (MWenet). When the time unit is added, i.e., MW-hours, energy production becomes power output.

33 Union of Soviet Socialist Republics (Сою́ з Сове́тских Социалисти́ ческих Респу́блик, or U.S.S.R., or Soviet Union) was the predecessor State to what is currently the Russian Federation (Russia). The U.S.S.R. was formed on December 30, 1922, following the Bolshevik overthrow of the Russian Empire, and was peacefully dissolved on December 26, 1991. 34 Vodo-Vodyanoi Energetichesky Reaktor (Water-Water Power Reactor) is the designator for an evolving series of pressurized water reactor designs developed in the Soviet Union (now Russia), by OKB Gidropress, a subsidiary of the State-owned atomic energy corporation Rosatom. The first VVERs were built in the mid-1950’s, with power output ranging initially from 70 to 1200 MWe today.

17 elected to restart Unit 2, with Unit 1 being cannibalized for spare parts to keep the reactor operating. ANPP-2 has now operated for over 40-years, ten more than it was originally designed for, and there are no plans to shut it down in the near future. Between the plant’s age, the reliance on cannibalized parts, deferments of all but the most immediately safety-significant maintenance activities due to funding issues, the concerns over its seismic robustness, and the overarching need for the plant’s continued operation to supply some 40% of Armenia’s electricity, ANRA’s ability to effectively oversee its safety is questionable.

Unit 1 of Pakistan’s Karachi Nuclear Power Plant (KANUPP-1) is a 137-MWe

CANDU (35) reactor that began commercial operation in 1972, and was initially shutdown in 2002 after completing its 30-year design life. Like Armenia, Pakistan suffers from severe electricity shortages and the Pakistani government decided to restart KANUPP-1, albeit at a reduced power rating of 90-MWe, in 2013. However, the seismic risks at the site were found to be twice as great as it was originally designed for, requiring a substantial effort to reinforce the Unit so that it could withstand a significant earthquake event. Further, in 1976 Canada stopped supplying spare parts and fuel due to Pakistan’s refusal to sign the Treaty on the Non-Proliferation of Nuclear Weapons (Non-

Proliferation Treaty or NPT), which has necessitated significant indigenous efforts to develop necessary spare parts and fuels, further placing in doubt KANIPP-1’s robustness.

35 First developed in the late 1950’s, CANDU (CANada Deuterium Uranium) is an evolving pressurized water reactor 2 design that uses heavy water (deuterium oxide, H2O or D2O) as a moderator and natural (unenriched) uranium as fuel.

18 Argentina’s Atucha 1, a 362-MWe Pressurized Heavy Water Reactor (PHWR) built by Seimens, began operation in 1974 and was the first NPP in Latin America. However, the design was both unique and obsolete before the plant’s construction was completed.

The challenges presented by a unique and obsolete design were exacerbated when

Siemens exited the nuclear power business, necessitating NA-SA to shoulder all of the technical responsibility for the facility, much like the above KANUPP-1 example. Since the facility is proposed to continue operating for twice its design life, and there is little expertise available on this design other than NA-SA’s, ARN may face difficulties in being able to ensure its continued safety, especially in providing high-quality replacement parts and being able to accurately analyze and mitigate off-normal conditions in this one- of-a-kind plant.

In addition to the technical and natural hazards the above facilities face, each of the above NPPs are owned and operated by their respective governments through state- owned electrical companies, making the government both owner and regulator, further challenging the ability of their respective NNRA to provide adequate oversight.

In contrast to the challenges facing NNRAs like those in Armenia, Pakistan, and

Argentina, a recent example of a State that has taken significant actions to make its

NNRA more effective is Japan, which reorganized its NNRA in 2012, creating the

Nuclear Regulation Authority of Japan (JNRA) as a strengthened amalgamation of the regulatory bodies in place when the March 11, 2011, magnitude 9.1 Great East Japan earthquake occurred (36). JNRA’s reorganization, the centralization of authority with it,

36 The FUKUSHIMA DAIICHI nuclear disaster is discussed in detail in Chapter 2.

19 and the renewed focus on safety and security issues, was modeled on the regulatory structures of the USNRC and France’s Nuclear Safety Authority (Autorité de sûreté nucléaire, ASN). Prior to this reorganization, the responsibility for oversight of the non- military uses of nuclear materials and technologies was split between several decentralized organizations – the Atomic Energy Commission of Japan, the Nuclear

Safety Commission of Japan, and the Nuclear and Industrial Safety Agency.

The Atomic Energy Commission of Japan (JAEC) was established in 1956 as an advisory (37) board for the Prime Minister on matters regarding the promotion of atomic energy development and utilization (38). The Nuclear Safety Commission of Japan

(JNSC), formed in 1978 as a separate entity from the JAEC, ostensibly had jurisdiction over nuclear safety issues but was without legal authority to provide more than recommendations (39). The Nuclear and Industrial Safety Agency (NISA) was formed in

2001 to have jurisdiction over matters of nuclear and industrial safety, and the Ministry

37 JAEC was established as an Article 8, i.e., an advisory body, organization under Japan’s National Government Organization Act, as opposed to an Article 3 decision-making organization. 38 The Japanese Prime Minister had authority, under the 1957 Law for the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors, to approve licenses for commercial use of nuclear materials/technologies; however, the Law stipulated that the PM should listen to and respect the opinion of the JAEC, as well as getting consent from the competent ministers – either the Minister of International Trade and Industry (MITI) for nuclear power reactors, or the Minister of Transport for commercial marine reactors. 39 The Nuclear Reactors Regulation Law was revised in 1978 to address public mistrust of the government’s ability to provide adequate oversight of nuclear power, leading to the creation of the JNSC as an Article 8 body; in addition, the revision to the Law transferred regulation of commercial nuclear power reactors and nuclear fuel facilities to the Minister of MITI, commercial marine reactors to the Minister of Transport (following the 2001 government reorganization, the Minister of Land, Infrastructure and Transportation), and research and test reactors and those in research and development the stage to the Prime Minister (and in 2001, to MEXT).

20 of Education, Culture, Sports, Science and Technology (MEXT) assumed oversight of research reactors, radiation dose regulation, and safeguards (40).

The centralization of regulatory authority into JNRA, as an Article 3 external organization of the Ministry of the Environment, separated the functions of promotion and regulation of nuclear energy, and established the JNRA as an independent and impartial body that can provide regulations on nuclear energy, nuclear security, safeguards, radiation monitoring, and radioisotopes. Promotional activities remain with the predecessor organizations: METI supports nuclear fuel cycle (41) activities; MEXT supports research and development activities, human resources, and nuclear liability issues for the government; and, the Ministry of Foreign Affairs (MOFA) is responsible for implementation of related international treaties and conventions.

The above examples highlight both the need for assistance to under-resourced and under-authorized NNRAs, as well as the ability of existing NNRAs to strengthen their ability to provide adequate oversight.

1.3 Organizations Reviewed

However, the question arises as to why would any State willingly, absent some extraordinary event like the Great East Japan earthquake which highlighted significant weaknesses in the existing NNRA, accept external assistance to strengthen their nuclear

40 NISA was a special institution of the Agency of Natural Resources and Energy of the Ministry of Economy, Trade and Industry (METI, which was renamed from MITI). 41 The nuclear fuel cycle are those activities involved in mining, milling, conversion and enrichment, and fuel fabrication (“front end”), temporary storage, reprocessing and recycling, and disposal (“back end”).

21 regulatory regime, especially since doing so could focus attention on deficiencies in their own NNRA?

International organizations exist that provide technical assistance to States in a variety of areas. Specifically, there are multiple examples of States that have augmented the expertise and capabilities of their indigenous government agencies by participation in the activities of various intergovernmental organizations (IGOs), including several United

Nations’ specialized agencies (42) that are part of the focus of this dissertation, including the International Civil Aviation Organization, the International Maritime Organization, and the International Telecommunication Union.

While not specifically relevant to this dissertation, the Universal Postal Union, the

World Intellectual Property Organization, and the World Health Organization also offer illustrative examples as to why States participate in international IGOs, such as the UN’s specialized agencies.

42 The UN specialized agencies are autonomous organizations working with the United Nations. All were brought into relationship with the UN through negotiated agreements. Some existed before the First World War. Some were associated with the League of Nations. Others were created almost simultaneously with the UN. Others were created by the UN to meet emerging needs. In addition to ICAO, IMO, and ITU, the UN has 12 other specialized agencies, including:  Food and Agriculture Organization (FAO)  International Fund for Agricultural Development (IFAD)  International Labor Organization  International Monetary Fund (IMF)  United Nations Educational, Scientific and  United Nations Industrial Development Organization Cultural Organization (UNESCO) (UNIDO)  World Tourism Organization (UNWTO)  Universal Postal Union (UPU)  World Health Organization (WHO)  World Intellectual Property Organization (WIPO)  World Meteorological Organization  World Bank (WMO) UN (2018) Funds, Programmes, Specialized Agencies and Others; http://www.un.org/en/sections/about- un/funds-programmes-specialized-agencies-and-others/index.html

22 The Universal Postal Union (UPU) was established by the Treaty of Bern of 1874.

The UPU coordinates postal policies among member States (43), obviating the need for separate treaties and enabling anyone to send mail virtually anywhere in the world.

The World Intellectual Property Organization (WIPO) promotes the protection of intellectual property, technology transfers, and economic development among its member

States (44). WIPO administers 26 treaties covering three broad groups – internationally agreed basic standards for intellectual property (IP) protection, a global protection system that ensures that one international registration or filing will have effect in any of the relevant signatory States, and classification treaties which create systems that organize information concerning inventions, trademarks and industrial designs into indexed, manageable structures for easy retrieval.

The World Health Organization (WHO) focuses on international public health coverage among its member States (45), including reducing the “health, social and economic burden” of communicable diseases, i.e., HIV/AIDS, Ebola, malaria, and tuberculosis, and the mitigation of the effects of non-communicable diseases, among other areas.

Participation in the UPU, WIPO, WHO, and the other UN specialized agencies help

States increase their ability to facilitate their interactions with other States, and to more

43 UPU’s member States are the 193 UN members (except Andorra, which has its mail delivered through France and Spain; and, the Marshall Islands, the Federated States of Micronesia, and Palau, which have their mail delivered through the U.S.) and Vatican City. Palestine has special observer status. 44 WIPO’s member States include 188 UN members (except the Federated States of Micronesia, Nauru, Palau, and South Sudan). Palestine has permanent observer status. 45 WHO’s member States include all UN members (except the Cook Islands and Niue), and two associate members – Puerto Rico and Tokelau. Palestine, the Holy See, and the Order of Malta have observer status.

23 effectively and efficiently participate in the global economy, while providing cost- effective means to accomplish certain functions and goals, such as providing their citizens access to developmental opportunities (IMF, UNIDO, UNWTO, World Bank), increasing food security (FAO, IFAD, WMO), or improving opportunities for intellectual and cultural advancement (UNESCO), to name but a few cases.

1.3.1 International Civil Aviation Organization

The International Civil Aviation Organization (ICAO) was established in 1944 by the

Convention on International Civil Aviation (Chicago Convention). ICAO codifies the standards and practices which civilian aviation observes in order to facilitate safe and secure international air transportation. ICAO’s membership has grown from its 54 founding States to include 191 of the 193 UN member States (46). Specifically, ICAO:

“…works with the Convention’s 192 Member States and industry groups to reach consensus on international civil aviation Standards and Recommended Practices (SARPs) and policies in support of a safe, efficient, secure, economically sustainable and environmentally responsible civil aviation sector. These SARPs and policies are used by ICAO Member States to ensure that their local civil aviation operations and regulations conform to global norms, which in turn permits more than 100,000 daily flights in aviation’s global network to operate safely and reliably in every region of the world. In addition to its core work resolving consensus-driven international SARPs and policies among its Member States and industry, and

46 The Cook Islands, which is non-UN member State, is a member of ICAO. The Commonwealth of Dominica is not a member; and, the Principality of Liechtenstein has delegated authority to Switzerland to implement the Chicago Convention so as to make it applicable in the territory of Liechtenstein. The Republic of China (Taiwan) was a founding member of ICAO but was replaced by the People's Republic of China as the legal representative of China in 1971. In addition to its Member States, ICAO maintains a listing of international organizations that may be invited to attend ICOA meetings; however, these organizations are not classified as “observers.”

24 among many other priorities and programs, ICAO also coordinates assistance and capacity building for States in support of numerous aviation development objectives; produces global plans to coordinate multilateral strategic progress for safety and air navigation; monitors and reports on numerous air transport sector performance metrics; and audits States’ civil aviation oversight capabilities in the areas of safety and security.” (ICAO, 2018)

In developing standards and recommended practices (47), ICAO utilizes a four “C” process: cooperation in the formulation of SARPs, consensus in their approval, compliance in their application, and commitment of adherence. Member States’ civil aviation authority (CAA) can either adopt the SARPs as is, or they must notify ICAO of any variances between the SARP and their national regulations. ICAO confirms, through its Universal Safety Oversight Audit Programme (USOAP), if a member State has the capability to provide safety oversight by “assessing whether the State has effectively and consistently implemented the critical elements (CEs) of a safety oversight system, which enable the State to ensure the implementation of ICAO's safety-related Standards and

Recommended Practices (SARPs) and associated procedures and guidance material.”

However, it is important to understand that ICAO does not have formal enforcement authority – if a member State’s CAA does not comply with the approved SARPs and policies, then the most that ICAO can do is “red flag” significant safety concerns

47 ICAO defines a standard as “any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which Contracting States will conform in accordance with the Convention” and a recommended practice as “any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is recognized as desirable in the interest of safety, regularity or efficiency of international air navigation, and to which Contracting States will endeavour to conform in accordance with the Convention.” ICAO (2018) Making an ICAO Standard; https://www.icao.int/safety/airnavigation/Pages/standard.aspx

25 identified during an audit and which are subsequently not addressed within a set period of time. ICAO publishes the results of these audits, and each member State can then determine – based either solely on the USOAP results or in conjunction with the State’s own audit of the other State’s program – if the other State can ensure that civil aviation can be conducted safely to or from that State to a degree that the first State will allow air traffic to or from the first State (48). As an extreme measure, if infractions are not resolved in a timely manner, ICAO’s Governing Council can suspend the voting powers of the offending member State (ICAO, 2018).

1.3.2 International Maritime Organization

The International Maritime Organization (IMO) was formally established by an international conference in 1948. Even though various States codified maritime safety amongst themselves through treaties as early as the mid-1800’s, it wasn’t until the establishment of the UN that a permanent maritime IGO with true global reach could be founded. Originally established as the Inter-Governmental Maritime Consultative

Organization (IMCO), the name was changed in 1982 to IMO. IMO’s purposes, as summarized by Article 1(a) of the Convention, are:

“…to provide machinery for cooperation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds

48 Presently As of January 2019, Antigua and Barbuda, Bhutan, Eritrea, Grenada, Saint Kitts and Nevis, Saint Lucia, and Saint Vincent and the Grenadines, had been “red flagged,” i.e., an indicator that the State is not providing sufficient safety oversight to ensure the effective implementation of applicable ICAO Standards. Bhutan was red flagged over a concern as to its CAA’s ability to properly oversee air navigation services under its jurisdiction (even though its 62.18% score in this category is higher than the global average of 61.6%), and the other States had red flags over concerns with their CAAs’ ability to oversee air operations of their respective airlines. ICAO (2019) “Safety Audit Results: USOAP interactive viewer”; https://www.icao.int/safety/pages/usoap- results.aspx

26 affecting shipping engaged in international trade; to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and prevention and control of marine pollution from ships.” (IMO, 2018)

Since its formation, IMO has promoted the adoption of some 50 conventions and protocols and adopted more than 1,000 codes and recommendations concerning maritime safety and security, the prevention of pollution and related matters (49). In the 1970’s,

IMO expanded its work on preventing and mitigating maritime pollution, including championing the 1973 International Convention for the Prevention of Pollution from

Ships, which was modified by the Protocol of 1978 (MARPOL 73/78), which covers pollution from oil spills, chemicals, packaged goods, sewage, garbage and air pollution.

In the early 2000’s, maritime security became another major focus area, and IMO developed a comprehensive security regime for international shipping, including the

International Ship and Port Facility Security (ISPS) Code, which was made mandatory for all member States under amendments to the International Convention for the Safety of

Life at Sea (SOLAS (50)) adopted in 2002.

IMO currently has 174 Member States and three Associate Members. Eighty-one international non-governmental organizations (NGOs (51)) representing shipping and other

49 IMO (2013) “IMO What it is”; http://www.imo.org/en/About/Documents/What%20it%20is%20Oct%202013_Web.pdf 50 While it has been amended and extended several times over the past century, the initial SOLAS Treaty was developed in 1914 in response to the sinking of the RMS Titanic; however, it never entered into force due to the outbreak of World War I. The most recent version, SOLAS 1974, as amended, has 162 contracting States, which flag about 99% of merchant ships around the world in terms of gross tonnage. 51 While the exact definition of NGO is fluid, and could include informally organized social “movements” such as the Time’s Up social movement protesting sexual harassment, for the purposes of this dissertation NGOs are private organization “not established by a government or by intergovernmental agreement which are capable of playing a

27 interests have concluded agreements of cooperation with IMO and are in Consultative

Status. Sixty-four intergovernmental organizations have signed agreements of cooperation on “matters of common interest with a view to ensuring maximum coordination.”

Like ICAO, IMO does not have jurisdiction to enforce its codes, standards, and regulations, leaving that instead to its member States’ equivalent of the U.S. Coast Guard, which is the U.S. government’s lead organization for both policy development and enforcement of the regulations that the U.S. promulgates to adhere to IMO guidance documents and conventions.

1.3.3 International Telecommunication Union

One of the oldest IGOs, the International Telecommunication Union (ITU) was formed in 1932 by the consolidation of the International Telegraph Union, which was established in 1865 by the International Telegraph Convention, and the International

Radiotelegraph Union, which was established by the International Radiotelegraph

Convention in 1906.

ITU is responsible for issues that concern information and communication technologies (ICTs), including allocating global radio spectrum and satellite orbits, developing the technical standards that ensure networks and technologies seamlessly interconnect, and improving access to ICTs to underserved communities worldwide. ITU is active in broadband Internet, latest-generation wireless technologies, aeronautical and

role in international affairs by virtue of their activities.” It should be noted that many NGOs are partially State- or corporate-funded and have professional staff. Rechenberg (1986) “Non-Governmental Organizations,” 9 Encyclopedia of Public International Law 276

28 maritime navigation, radio astronomy, satellite-based meteorology, convergence in fixed- mobile phone, Internet access, data, voice, TV broadcasting, and next-generation networks.

ITU has 193 Member States, including all UN member states except the Republic of

Palau and Vatican City; and over 58 private organizations (i.e., carriers, equipment manufacturers, funding bodies, research and development organizations, and international and regional telecommunication organizations) are non-voting Sector

Members (ITU, 2018).

1.3.4 Other IGOs Examined

In addition to ICAO, IMO, and ITU, there are three other IGOs that this dissertation examines: the International Atomic Energy Agency, the Nuclear Energy Agency, and the

Nuclear Suppliers Group.

1.3.5 International Atomic Energy Agency

The International Atomic Energy Agency (IAEA) is not a UN specialized agency; even though it reports annually to the UN General Assembly (and, when appropriate, to the UN Security Council). The IAEA was established in 1957 as an autonomous agency to “promote safe, secure and peaceful nuclear technologies” globally (IAEA, 2013).

While the IAEA’s authorizing Statute was unanimously approved on October 23, 1956, by the 81 States that participated in the Conference on the Statute of the International

Atomic Energy Agency, the genesis of the IAEA was the “Atoms for Peace” address then

U.S. President Eisenhower made to the United Nations’ General Assembly on

December 8, 1953. Eisenhower’s iconic speech was designed to move the world away

29 from the very real horrors of an unbridled nuclear arms race (52) and towards a means of utilizing this new science and its technologies for the advancement of the world. As such, the IAEA was meant to be a means by which the peaceful and beneficial uses of nuclear materials and technologies, including nuclear energy, could be both promulgated and controlled.

The IAEA functions in a manner somewhat analogous to the former U.S. Atomic

Energy Commission (USAEC) (53) and its successor, the U.S. Department of Energy

(USDOE) in that one of its two primary focuses (54) is promoting the use of nuclear technologies, which was one of the cornerstone missions of the USAEC, and is now part of the mission of the USDOE. While the IAEA has developed high-level guidance documents that States may utilize in developing and improving their own nuclear

52 The United States is the only State to date to use nuclear weapons militarily, i.e., the August 6, 1945, dropping of the 15-kilotonne-of-TNT-equivalent (kt) “Little Boy” on Hiroshima, followed by the August 9, 1945, bombing of Nagasaki, Japan, with the 21-kt “Fat Man.” While historians have argued that the use of these weapons were legal and moral (which is not the point of this dissertation), it is undeniable that the subsequent nuclear arms race has resulted in an existential threat to all life. There has been about a dozen publicly acknowledged close calls over the past 60 years, including the 1962 Cuban Missile Crisis between the U.S. and the former U.S.S.R., the 1969 Sino- Soviet border conflict between the U.S.S.R. and the PRC, and ongoing tensions between India and Pakistan (see Footnote 30, regarding the efforts of Argentina and Brazil to de-escalate nuclear tensions). See Chapter 2 for a more fulsome discussion. 53 The USAEC was created by the Atomic Energy Act of 1946 (McMahon Act), and assumed oversight of nuclear energy and weapons research, development, demonstration and deployment from the U.S. military on January 1, 1947. Initially, the USAEC was focused on weapons research; however, following Eisenhower’s “Atoms for Peace” speech, its mandate expanded to include supporting the commercial development of nuclear energy. While the USAEC was also statutorily empowered with regulatory oversight of commercial nuclear energy and materials, it faced considerable criticism over its perceived failures to adequately regulate the industry it was promoting, which eventually led to its breakup and the formation of a separate independent regulatory entity. The USAEC was dissolved by the Energy Reorganization Act of 1974, and its regulatory functions were assigned to the newly created U.S. Nuclear Regulatory Commission (USNRC), while its nuclear energy promotional duties – and its research and development of nuclear weapons – were assigned to what became the U.S. Department of Energy (USDOE) and then the National Nuclear Security Administration (NNSA), a semi-autonomous agency within the USDOE. 54 The IAEA’s other primary focus is its safeguards responsibilities under the NPT.

30 regulatory program, these guidance documents lacks sufficient specificity which would allow them to be utilized as the basis for a State’s nuclear energy regulatory infrastructure.

The IAEA is not empowered to serve as an international regulator, nor to police violations of the NPT. As stated in the IAEA Primer’s factsheet:

Although the IAEA is not an international regulatory body, its nuclear safety efforts are directed towards creating agreed multilateral norms. These are increasingly important mechanisms for improving nuclear safety, radiation safety and waste safety around the world. IAEA safety recommendations are used by many countries as a basis for domestic standards and regulations. (IAEA 2013a, pg. 1)

As part of the IAEA’s activities to promote increased non-military uses of nuclear energy, the IAEA has developed high-level guidance documents that cognizant national authorities, i.e., NNRAs, may utilize in developing and improving their own domestic regulatory program. However, these guidance documents provide only an overview of the activities that are needed to actually regulate the safety and security of nuclear facilities – IAEA’s guidance documents can be likened to a floor plan, as opposed to a complete set of architectural drawings. The use of these guidance documents is not mandatory to any IAEA Member State, although most Member States do consider the

IAEA’s guidance documents in developing their own regulatory infrastructure (55).

Further, the IAEA, and other international organizations described in greater detail below, offer their member States – usually through the voluntary assistance of other

55 It should be noted that Member States who request assistance from the IAEA in establishing the prerequisite institutional, human and physical infrastructure prior to, or during, the launching of a commercial nuclear energy program must agree to comply with the IAEA safety and security guidance documents; however, the specifics of such compliance are open to interpretation.

31 member States with more mature nuclear energy programs and regulatory oversight authorities – access to various subject matter experts who can provide assistance in developing the necessary legal, technical, and educational infrastructure that will be needed to ensure safety and security as these States move forward in establishing a nuclear energy industry. However, since such assistance is provided from a variety of

States, each of which has its own unique regulatory culture, the requesting State will need to decide first which State’s NNRA it wishes to emulate.

When requested by a Member State, IAEA performs periodic safety audits of that

Member State’s commercial nuclear power programs through activities such as

Operational Safety Readiness Team (OSART (56)) and Safety Aspects of Long-Term

Operation of Water Moderated Reactors (SALTO (57)) missions, and of the NNRAs

56 “During an OSART mission a team of international experts conducts in-depth reviews of operational safety performance at a nuclear power plant. They review the factors affecting the management of safety and the performance of personnel. The focus of these OSART missions is on identifying gaps between plant operations and the requirements outlined in the IAEA Safety Standards. . . . OSART missions provide the host country and the relevant institutions – plant and utility management, the regulatory authority, other governmental authorities – with an objective assessment of the operational safety at the reviewed nuclear power plant compared with the IAEA’s Safety Standards. The reviews are not regulatory inspections or audits of national codes and standards. Instead, they represent a technical exchange of experiences and practices at the working level, aimed at finding opportunities for strengthening programmes, procedures and practices at the nuclear power plant that is being reviewed. The review is performed by interviewing personnel, reviewing documentation and conducting field visits to observe plant condition and adherence to expectations.” IAEA (2019) Operational Safety Review Team (OSART); https://www.iaea.org/services/review- missions/operational-safety-review-team-osart 57 “The SALTO peer review is a comprehensive safety review directly addressing strategy and key elements for the safe long-term operation of nuclear power plants. The evaluation of programmes and performance is made on the basis of the IAEA’s Safety Standards and other guidance documents. . . . The peer review service addresses the following areas:  Organization and functions, current licensing basis, configuration or modification management;  Scoping and screening, as well as plant programmes relevant to the long-term operation;  Ageing management review, review of ageing management programmes and revalidation of time-limited ageing analyses for mechanical components;

32 through Integrated Regulatory Review Service (IRRS (58)) and International Physical

Protection Advisory Service (IPPAS (59)) missions. However, the findings of IAEA audits and reviews do not have the force of law, and may be made public only if the

Member State agrees.

 Ageing management review, review of ageing management programmes and revalidation of time-limited ageing analyses for electrical and instrumentation and control (I&C) components;  Ageing management review, review of ageing management programmes and revalidation of time-limited ageing analyses for civil structures; and  Human resources, competence and knowledge management for long-term operation (this is optional).” IAEA (2019) “Safety Aspects of Long Term Operation (SALTO)”; https://www.iaea.org/services/review- missions/safety-aspects-of-long-term-operation-salto 58 “The IRRS regulatory review process provides the opportunity for peer review of both regulatory technical and policy issues in any state regardless of the level of development of its activities and practices involving ionizing radiation or nuclear programme, and enables an objective comparison of the national regulatory infrastructure against IAEA Standards and Guidance. The IRRS evaluates as objectively as possible, the state’s regulatory infrastructure for safety with respect to these standards and practices, and provides recommendations and suggestions for improvement.” IAEA (2019) IRIS Regulatory Reviews; http://www-ns.iaea.org/reviews/rs-reviews.asp?s=7&l=47 59 “The International Physical Protection Advisory Service (IPPAS) missions continue to serve as the Agency’s chief tool for evaluating existing physical protection arrangements in Member States. IPPAS missions carry out detailed reviews of the legal and regulatory basis for the physical protection of nuclear activities in the requesting State and of compliance with obligations contained in the CPPNM. They also compare the established national practices with the guidance provided in IAEA documents as well as with international best practices. The findings of IPPAS missions are formulated into confidential mission reports for further action on a multilateral, bilateral or unilateral basis. Specific IPPAS follow-up assistance such as training, technical support and more targeted assessments constitute an essential feature of this advisory service.” IAEA (2019) “International Physical Protection Advisory Service”; http://www- ns.iaea.org/security/advisory.asp?s=7&l=48

33 1.3.6 Nuclear Energy Agency

The OECD’s (60) Nuclear Energy Agency (NEA (61)) was founded by the OECD’s predecessor organization (OEEC) on February 1, 1958, as the European Nuclear Energy

Agency (ENEA). On April 20, 1972, the ENEA formally changed its name to the Nuclear

Energy Agency when Japan became a member. The NEA’s 33 member States (62) represent approximately 85-percent of the global installed nuclear energy capacity.

NEA’s major emphasis is providing a forum for sharing information and experience among its member States. This is reflected in the NEA’s Mission Statement:

To assist its member countries in maintaining and further developing, through international co-operation, the scientific, technological and legal bases required for a safe, environmentally sound and economical use of nuclear energy for peaceful purposes. It strives to provide authoritative assessments and to forge common understandings on key issues as input to government decisions on nuclear energy

60 Originally the Organisation for European Economic Co-operation, the OEEC was founded in 1948 to administer the Marshall Plan’s aid package to rebuild western Europe after World War II. In 1961, the OEEC was reorganized into the Organisation for Economic Co-operation and Development (OECD), and membership was extended to non-European states. The OECD is an intergovernmental organization that fosters cooperative solutions in economic, environmental, and social issues in order to stimulate economic progress and world trade. OECD currently has 36 member States, including 21 of the 28 European Union member states; and, Colombia has been invited to join. OECD (2019) “History”; http://www.oecd.org/about/history/#d.en.194377 61 Founded by the OEEC on February 1, 1958, as the European Nuclear Energy Agency, the ENEA formally changed its name to the Nuclear Energy Agency on April 20, 1972, when Japan became a member. 62 NEA’s member States include (bolded States presently have NPPs): Argentina, Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg, Mexico, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Republic of Korea, Spain, Sweden, Switzerland, Turkey, U.K., U.S. The PRC and India are “strategic partners,” but are not presently full members. NEA (2018) The Nuclear Energy Agency; https://www.oecd-nea.org/general/about/

34 policy and to broader OECD analyses in areas such as energy and the sustainable development of low-carbon economies. (NEA 2017 (63))

NEA’s sharing of information does not translate into an explicit effort by the NEA’s member States to standardize their regulatory practices, although there is a general expectation that member States will give due consideration to the “best practices” and

“lessons learned” shared by the various NEA members with each other, and incorporate this information into their individual regulatory regimes. As stated in NEA’s 2017-2022

Strategic Plan, the goal for nuclear safety technology, regulation and human aspects of safety is:

…to assist member countries in their efforts to ensure high standards of safety in the use of nuclear energy, by supporting the development of effective and efficient regulation and oversight of nuclear installations and activities, by helping to maintain and advance the scientific and technological knowledge base and by promoting enhanced safety culture, effective training and other human aspects of nuclear safety. (NEA 2017, pg. 19ff)

To support the achievement of this goal, NEA seeks (in part) to “enhance the efficiency and effectiveness of the regulatory process and encourage harmonization of the regulatory processes.” However, NEA has no mechanism to do more than encourage its member States to improve their individual regulatory regimes, or to make each consistent with other States’ regulatory regimes. In addition, there are no on-going activities to support the development of robust NNRAs in non-member nations beyond the publication of various NEA reports.

63 NEA (2017) “Strategic Plan of the Nuclear Energy Agency: 2017-2022”; https://www.nea.org/home/57335.htm?cpssessionid=SID-A3CFE58B-E7309FB9

35 1.3.7 Nuclear Suppliers Group

Originally known as the “London Club,” the Nuclear Suppliers Group (NSG) was founded in 1974 to facilitate a consistent interpretation of the obligations under the

NPT’s Article III.2 (64) among nuclear suppliers following India’s first successful nuclear bomb test, Smiling Buddha (65), which was also the first confirmed nuclear weapons test by a State other than the five permanent members (66) of the UN Nations Security

Council, and the first nuclear weapons test by a State that was not a signatory to the NPT.

Subsequently, two other non-NPT States, Pakistan and DPRK, have both acknowledged their testing and possession of nuclear weapons (67).

64 NPT Article III.2: Each State Party to the Treaty undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this Article. 65 Also known as Pokhran-1, for the Pokhran Test Range where the test was conducted, it was an 8-kt underground test. India claimed it was a “peaceful nuclear explosion.” “This test has been known since its public announcement as ‘Smiling Buddha’, a name apparently given to it by [D.P. Dhar, principal secretary to then Prime Minister Indira Gandhi], but the origin of this appellation is somewhat mysterious. The test actually had no formal code name prior to the shot (a pattern that would be repeated with the second test series 24 years later). The test was coincidentally conducted on the Buddhist festival day of Buddha Purnima, perhaps the reason that the association with the Buddha came about. Chengappa relates that the story that Sethna passed on the message to Dhar with the code phrase ‘The Buddha is smiling’ is probably a myth. Haksar refused to confirm the story in an interview before his death, Sethna denies he used such a code phrase, and Dhar agrees that this phrase was not used, and claims he was not responsible for it. Ramanna claims that he had been told by Sethna that the code phrase had been used, and that the phrase was Dhar's idea. Sethna believes that Dhar made up the code name after the test.” Nuclear Weapon Archive (2001) “India's Nuclear Weapons Program – Smiling Buddha: 1974”; http://nuclearweaponarchive.org/India/IndiaSmiling.html 66 The permanent members of the UN Security Council are the United States, the Russian Federation (as the successor state to the U.S.S.R.), the United Kingdom, France, and the People’s Republic of China. The five permanent members of the UN Security Council are also the only nuclear-weapon States (NWS) under the terms of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). 67 Israel is believed to have tested nuclear weapons, but neither confirms nor denies possessing nuclear weapons. Arms Control Association (2019) “Nuclear Weapons: Who Has What at a Glance”; https://www.armscontrol.org/factsheets/Nuclearweaponswhohaswhat

36 The NSG is one of four Multilateral Export Control Regimes (68), voluntary and nonbinding arrangements by major supplier (69) States designed to prevent the proliferation of weapons of mass destruction (WMD) and their delivery means, related equipment, and technology. The NSG is an international body independent of the UN which nuclear supplier States use to contribute to the non-proliferation of nuclear weapons through the implementation of Guidelines for nuclear exports and nuclear- related exports. As of 2019, the NSG has 48 participating governments:

Table 1-1: Member States of the Nuclear Suppliers Group

NSG (2019) “Participants”; https://www.nuclearsuppliersgroup.org/en/about- nsg/participants1

Argentina Denmark Latvia Serbia

Australia Estonia Lithuania Slovakia

Austria Finland Luxembourg Slovenia

Belarus France Malta South Africa

Belgium Germany Mexico Republic of Korea

68 In addition to the NSG, there are currently three other multilateral export control regimes: Wassenaar Arrangement: promotes transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies; Australia Group: established in 1985 after the use of chemical weapons by Iraq to control exports of chemical and biological technology that could be weaponized; and, Missile Technology Control Regime: works to control the export of technologies related to rockets and other aerial vehicles capable of delivering weapons of mass destruction IAScore (2018) “Multilateral Export Control Regime – An Introduction”; https://www.iasscore.in/topical- analysis/multilateral-export-control-regime-an-introduction- 69 For the purpose of this dissertation, a supplier (or a vendor) is a company that provides products and/or services for nuclear technology users. Examples include Areva (France), China National Nuclear Corporation (PRC), KEPCO E&C (ROK), Rosatom (Russia), and Westinghouse (USA).

37 Brazil Greece Netherlands Spain

Bulgaria Hungary New Zealand Sweden

Canada Iceland Norway Switzerland

People's Republic of Ireland Poland Turkey

China Italy Portugal Ukraine

Croatia Japan Romania United Kingdom

Cyprus Kazakhstan Russia United States

Czech Republic

Bolded States presently have NPPs; italicized States are constructing NPPs, and underlined States are planning to add NPPs.

Table 1-1: Member States of the Nuclear Suppliers Group

It should be noted that the creation and continued adherence to the NPT has been one of the most significant actions taken in the past seventy years to control the spread of nuclear weapons. As Ambassador Thomas Graham, Jr., an arms control and proliferation expert, observed:

The NPT is based on a central bargain: the NPT non-nuclear-weapon states agree

never to acquire nuclear weapons and the NPT nuclear-weapon states in exchange

agree to share the benefits of peaceful nuclear technology and to pursue nuclear

disarmament aimed at the ultimate elimination of their nuclear arsenals. (Graham,

2004)

Even though India was not a signatory to, and therefore not bound by, the NPT, the

Smiling Buddha test demonstrated the need for nuclear supplier States to enhance their control over non-weapons-specific nuclear technologies that could be repurposed to

38 weapons development, especially since India had acquired the nuclear material for their weapons from a reactor supplied under the guise of peaceful nuclear research (70). These

“dual-use” technologies (71) are enumerated in the NSG’s Guidelines:

The NSG Part 1 Guidelines govern the export of items that are especially designed or

prepared for nuclear use. These include: (i) nuclear material; (ii) nuclear reactors

and equipment therefor; (iii) non-nuclear material for reactors; (iv) plants and

equipment for the reprocessing, enrichment and conversion of nuclear material and

for fuel fabrication and heavy water production; and (v) technology (including

software) associated with each of the above items. These items are known as Trigger

List Items as the transfer of an item triggers safeguards.

The NSG Part 2 Guidelines govern the export of nuclear-related dual-use items and

technologies, that is, items that can make a major contribution to an unsafeguarded

nuclear fuel cycle or nuclear explosive activity; but that have non-nuclear uses as

well, for example in industry. These items are known as Dual-Use Items. (NSG 2018)

The NSG plays a critical role globally in the foundational understanding that is the

NPT by facilitating nuclear commerce of nuclear technologies while minimizing the potential for nuclear proliferation and other nuclear threats, thus enhancing nuclear

70 Supplied by Canada in 1954, the CIRUS (Canada India Reactor Utility Services) research reactor used heavy water supplied by the U.S. Both the U.S. and Canada had stipulated that the reactor was only to be used for peaceful purposes; however, India produced weapons-grade plutonium and diverted it to military use. CCNR (1996) “Exporting Disaster – The Cost of Selling CANDU Reactors”; http://www.ccnr.org/exports_3.html#3.2.2 71 Dual use technologies can be utilized for either peaceful or military purposes. Examples include rocket technologies; chemicals which can either be used as weapons or can be used in the manufacture of chemical weapons but which also have legitimate industrial uses; and, technologies which can be used in the manufacture of biological weapons.

39 security and safeguards; however, the NSG does not have oversight or regulatory authority.

1.3.8 Standards Developing Organizations

While not specifically an area of focus in this dissertation, but which informs the background, Standards Developing Organizations (SDOs, also known as standards setting organizations), are important examples of how States normalize their commercial interactions both internally and with each other. SDOs are organizations whose primary activities involve developing, revising/amending, interpreting, and promulgating, technical standards (72), which are intended to address the needs of a group of affected adopters, by maximizing compatibility, interoperability, safety, repeatability, and/or quality across the standardized item.

International SDOs, such as the International Organization for Standardization

(ISO (73)) and the International Electrotechnical Commission (IEC), are private international organizations not established by any international treaty and are composed of the national standards bodies (NSBs (74)) of each member State. ISDOs develop or

72 As defined in ISO/IEC Guide 2:2004, a standard is “a document, established by consensus, that provides rules, guidelines or characteristics for activities or their results.” 73 The International Organization for Standardization (ISO) is a worldwide federation of national standards bodies from more than 145 countries, one from each country. ISO is a non-governmental organization established in 1947 and based in Geneva, Switzerland. Its mission is to promote the development of standardization and related activities in the world with a view to facilitating the international exchange of goods and services, and to developing cooperation in the spheres of intellectual, scientific, technological and economic activity. ISO's work results in international agreements which are published as International Standards and other types of ISO documents. ANSI (2018) “ISO Programs Overview”; https://www.ansi.org/standards_activities/iso_programs/overview 74 The NSB is the organization accredited in each State to coordinate among the standards-setting groups within the State to minimize or eliminate overlap and duplication of efforts in standards-setting activities. The U.S. NSB, the

40 endorse standards which are used world-wide, while regional SDOs, such as the Pan

American Standards Commission (COPANT), the Pacific Area Standards Congress

(PASC), the European Committee for Standardization (CEN), the Gulf Cooperation

Council (GCC), and the African Organization for Standardization (ARSO), perform much the same function, but are nominally specific to a geographical region.

While standardization can be traced back to at least 3,300 BCE, when the Indus

Valley Civilization was utilizing standard weights and measures to ensure consistency in commercial transactions and to aid in construction projects, the onset of the Industrial

Revolution gave rise to an increased need for precision, interchangeability, and quality control. For instance, in 1841 the English engineer Joseph Whitworth devised what came to be known as the British Standard Whitworth (BSW) system, which created an accepted standard for screw threads. While this example may seem somewhat trivial, the adoption of the BSW by the emerging British rail system allowed for the rapid growth of railroads, and the corresponding compounding factor that cheap and reliable transportation had on the further industrialization of the U.K. Contrast this to the contemporaneous situation in

France, where each town and province had its own set of measures, perhaps as many as

250,000 in total, and this lack of standardization demonstrates how severely hampered was France’s ability to adopt on a wide-scale the various inventions that were fueling the industrialization of the U.K.

In the U.S. in 1803, Congress created the Office of Standard Weights and Measures to ensure uniformity in commerce; and, in 1901, the National Bureau of Standards (NBS,

American National Standards Institute (ANSI), is the sole U.S. representative and dues-paying member of ISO, and was a founding member.

41 now the National Institute of Standards and Technology, NIST) replaced the Office of

Standard Weights and Measures. While NBS/NIST was created to provide for the standardization of weights and measures, it has grown into being the lead government agency, or affiliated with the agency that is the competent authority (75), on virtually every scientific and technical area in which the U.S. Government is involved.

Without the adoption of commonly accepted standards, and the corresponding metric of “quality” (76), the development of the global economy would not have been possible, and instead one would have instances where, much like the earliest days of the advent of the telephone, competing telecommunication companies produced exchanges which couldn’t cross-connect with other companies, requiring some businesses to contract with every provider in town if they were to be able to communicate with their customers.

Standardization allowed not just for interconnectivity, but also provided an impetus that drove innovation and growth.

There are any number of industries today where the immediate consequences of not adhering to defined standards and the practices of quality management have imposed severe penalties on the workers, the public, and the environment, including the chemical industries, pharmaceutical industry, and the transportation industries, to give but three examples. However, none of these industries deal to the same degree with the public’s

75 A competent authority is any person or organization that has the legally delegated or invested authority, capacity, or power to perform a designated function. Once an authority is delegated to perform a certain act, only the competent authority is entitled to take accounts therefrom and no one else. 76 The various ISO 9000 standards “provide guidance and tools for companies and organizations who want to ensure that their products and services consistently meet customer’s requirements, and that quality is consistently improved.” Specifically, these ISO standards provides the fundamentals of quality management systems, including the seven quality management principles upon which the ISO 9000 standards are based. ISO (2018) ISO 9000 family - Quality management; https://www.iso.org/iso-9001-quality-management.html

42 apprehensions that nuclear energy does. As such, the nuclear energy industry must maintain an especially vigilant adherence to the best practices represented by well-vetted nuclear standards.

For instance, ASME (founded as the American Society of Mechanical Engineers) has, as part of its Boiler and Pressure Vessel Code (BPV), two main Sections that pertain to construction – Section III, “Rules for Construction of Nuclear Facility Components” – and inspection – Section XI, “Rules for Inservice Inspection of Nuclear Power Plant

Components” – of NPPs. To the extent practicable, the USNRC incorporates these, and standards developed by other SDOs, into its regulations instead of creating new requirements. However, other NNRAs utilize standards developed locally or regionally, complicating the ability of NNRAs to share data and forcing vendors to redesign their products to meet indigenous requirements.

While there exists a wide range of technical standards for designing, constructing, operating, maintaining, and decommissioning the various components and structures that make up an NPP, as well as requirements for the various competencies needed by both the operators and the NNRAs in order for States to have safe and secure commercial nuclear energy programs, no single organization oversees the development and maintenance of such standards and requirements globally.

Finally, there are three related nuclear NGOs that provide additional avenues of assistance to primarily the commercial operators of NPPs: the Institute of Nuclear Power

Operations, the World Association of Nuclear Operators, and the Electric Power

Research Institute.

43 1.3.9 Institute of Nuclear Power Operations

The Institute of Nuclear Power Operations (INPO) was established in 1979 by the

U.S. nuclear power industry in response to the 1979 Three Mile Island Unit 2 (TMI-2) partial meltdown accident (77). Primarily focused on, and funded by, U.S. NPPs and utilities, INPO’s mission is “to promote the highest levels of safety and reliability – to promote excellence – in the operation of commercial” NPPs through the establishment of industry-wide performance objectives, criteria, and guidelines (78). INPO conducts regular detailed evaluations of U.S. nuclear power industry NPPs, identifying strengths and areas for improvement; and, provides assistance by facilitating information exchanges, training, and assistance visits from its members, to help its members continually improve their performance. INPO’s membership is voluntary, and adherence to their recommendations is based solely on their membership’s willingness to do so, although there is significant “peer pressure” from other members to encourage compliance. However, an NPP’s NEIL insurance premium is predicated on the result of the INPO evaluation (79).

The need for an organization to help the U.S. nuclear industry self-police itself is exemplified by a quote from then Chair of INPO’s board of directors Walter J. McCarthy,

77 Concurrent to the formation of INPO, in 1980 a group of U.S. electric utilities formed Nuclear Electric Insurance Limited (NEIL), to insure domestic and international nuclear utilities for the costs associated with interruptions, damages, decontaminations and related nuclear risks. In 1997, Nuclear Mutual Limited (NML), formed in 1973 as an alternative to the commercial nuclear insurance market, was merged NEIL. In 1999, NEIL expanded operations by launching NEIL Overseas in Dublin, Ireland. 78 INPO (2019) “Our Mission”; http://www.inpo.info/AboutUs.htm 79 Pate & Ellis (2011) “The Evolution of Nuclear Safety”; World Nuclear Association; http://www.world- nuclear.org/uploadedFiles/org/Archive/WNA_Personal_Perspectives/evolution_of_nuclear_safety(1).pdf

44 Jr., Detroit Edison’s Chief Executive Officer (CEO): “Each licensee is a hostage to every other licensee.” (80) A variation on this sentiment was a favorite saying by former

USNRC Chair Nils Diaz: “an accident anywhere is an accident everywhere.” Such outlooks convey the realization by U.S. nuclear utility executives that, no matter the cause of or who had responsibility for an event, any accident anywhere negatively impacts all nuclear utilities. As such, U.S. utility executives agreed that by forming

INPO and self-policing itself, the U.S. nuclear energy industry had a much greater opportunity to prevent – or mitigate to some degree – future USNRC regulatory overreach.

It should be noted that INPO is notoriously reticent to share information outside its membership, including with the USNRC. Some of this has to do with its founding CEO, retired U.S. Navy Vice Admiral Eugene Parks Wilkinson (81), who was instrumental in setting a culture of INPO providing its members impartial and blunt reviews, which if publicly released could cause negative impacts on the NPP’s utility’s bond ratings, additional regulatory scrutiny, and an increase in public concerns and opposition. Such in-depth and frank peer assessments are intended to encourage the U.S. nuclear industry to improve safety, with the objective being that by doing so, the USNRC would not need to take regulatory actions, including the imposition of possibly draconian

80 Rees (1996) Hostages of Each Other: The Transformation of Nuclear Safety since Three Mile Island; University of Chicago Press; ISBN-10: 0226706885 81 VADM Wilkinson was the first commanding officer of the first nuclear-powered submarine USS Nautilus (SSN- 571), and subsequently the first CO of the USS Long Beach (CGN-9), the first nuclear-powered surface ship.

45 requirements (82). It can be argued, as discussed in Chapter 2, INPO has been successful in pursuing this approach in the U.S.

1.3.10 World Association of Nuclear Operators

In October 1987, following the Chernobyl disaster, INPO and the International Union of Producers and Distributors of Electrical Energy (Union internationale des producteurs et distributeurs d'énergie électrique, UNIPEDE (83)) co-sponsored an International

Nuclear Utility Executive Meeting in Paris with the purpose of forming steering and implementation committees to establish an international NGO – similar in scope and authority to INPO – to provide a mechanism for nuclear operators around the world to share information in order to enhance nuclear safety. The charter for this IGO was signed by 144 nuclear companies from around the world, and on May 15, 1989, the World

Association of Nuclear Operators (WANO), was formed.

WANO’s mission is to “maximise the safety and reliability of nuclear power plants worldwide by working together to assess, benchmark and improve performance through mutual support, exchange of information, and emulation of best practices,” and its vision is to be “worldwide leaders in pursuing excellence in operational nuclear safety for commercial nuclear power.” WANO membership includes 115 nuclear operators in 35

States (including States in the process of adding nuclear energy), with membership falling into three categories:

82 See discussion in Chapter 2 regarding regulatory overreach following the Three Mile Island Unit 2 accident and the USNRC’s response to the Great East Japan earthquake (Fukushima). 83 UNIPEDE, similar to EPRI in the U.S., was formed in 1925 to research solutions for the European electrical industries. In 1999, UNIPEDE and EURELECTRIC – the association of the European Union electricity supply industry – merged and became the Union of the Electricity Industry (Eurelectric).

46  Category 1 members have voting rights in WANO General Meetings, and include

operating companies, plant owners or organizations that have been authorized by

one or more nuclear power plants or reprocessing facilities to represent them

within WANO;

 Category 2 members are operating companies that have chosen to be represented

by another member within WANO, i.e., all U.S. nuclear operators are represented

by INPO, and all Japanese operators are represented by the Japanese Nuclear

Operators (JNO);

 Category 3 members are organizations with an ownership stake in a nuclear

facility, but do not officially represent the operating company, or organizations

with a non-regulatory nuclear safety mission compatible with WANO’s own

mission, i.e., the CANDU Owners Group, U.K.’s Nuclear Decommissioning

Authority, Japan Nuclear Safety Institute.

WANO has four major programs:

 Peer Reviews, which (like INPO) utilizes an external and independent team from

other member organizations to provide in-depth objective reviews based on

WANO-established standards of excellence to benchmark performance;

 Performance Analysis, which collects, screens and analyses operating experience

and performance data, providing members with lessons learnt and industry

performance insight reports;

 Member Support, which is focused on improving its membership’s safety and

reliability through the use of member support missions, new unit assistance, the

47 development and promulgation of principles, guidelines and good practices, and

member support; and,

 Training & Development, which provides assistance to WANO members through

workshops, seminars, technical training courses, and leadership courses (WANO,

2018)

Like INPO, WANO membership and adherence to their recommendations is voluntary. Moreover, the global response to WANO’s recommendations and peer review findings has been generally positive, with members unanimously approving in 2011 a series of recommendations developed by WANO’s post-Fukushima Commission, representing a paradigm shift from focusing on accident prevention to a more holistic approach that include mitigation. These recommendations included a 50-percent increase in frequencies of peer reviews, from at least once every six years to every four years, with follow-up visits in between, and sanctions for non-compliance; the establishment of a worldwide integrated event response strategy; and, extending the scope of reviews from operational safety to include plant design upgrades.

1.3.11 Electric Power Research Institute

The Electric Power Research Institute (EPRI) was formed in 1972 as an independent and voluntary scientific research and development (R&D) organization to address technical and operational challenges in the electric power industry in the U.S. However, it should be noted that EPRI was created as a means for the U.S. electrical industry (84) to

84 When EPRI was formed, the U.S. electrical industry was comprised of some 480 investor-owned utilities; 2,000 municipal (city-owned) systems, approximately 1,000 privately owned rural electric cooperatives, four federal

48 prevent the U.S. Congress from enacting a similar, but federally-controlled, R&D organization as a response to the November 1965 Northeast Blackout in order to force the approximately 3,500 electrical generating companies in the U.S. to integrate their operations in order to ensure a safe and secure supply of electricity. The formation of

EPRI, and its subsequent efforts to research and address electrical generation technical issues, provided the U.S. government with assurance that the U.S. electrical industry could effectively collaborate, and provided the industry the assurance that its monies and efforts would be focused on areas that the industry considered of highest priority.

EPRI is funded by its member companies on the basis of each company’s annual generation, i.e., a company that generates twice as much electricity as another would pay twice as much in dues. This funding is pooled and spent on shared R&D projects selected by the EPRI Board, composed mainly of the largest member utilities’ CEOs, and senior leadership on projects to study and develop information, processes, guidance, technologies, and tools in five broad areas:

 Energy and Environment, e.g., environmentally sound planning and safe

operation of existing generation, transmission, and distribution assets;

 Generation, e.g., improve the flexibility, reliability, performance, and efficiency

of the existing fossil-fueled and renewable energy generating fleet;

 Nuclear, e.g., maximize the value of existing nuclear assets and inform the

deployment of new nuclear technology;

Power Marketing Administrations (PMAs) – Bonneville Power Administration (BPA), Western Area Power Administration (WAPA), Southeastern Power Administration (SEPA), and Southwestern Power Administration (SWPA) – and the Tennessee Valley Authority (a federally-owned corporation).

49  Power Delivery and Utilization, e.g., enable distributed energy resource (DER)

integration, efficient electrification, connectivity, and information technology to

better integrate the grid and ensure cyber security; and,

 Technology Innovation, e.g., support early-stage and breakthrough technologies

that could lead to promising concepts, new knowledge, and potential

breakthroughs.

EPRI presently has a majority of nuclear utilities from around the world as members.

EPRI’s programs encompass virtually every technical, financial, and managerial aspect of nuclear power plant design, construction, operation, maintenance, and decommissioning.

1.4 Challenges of Adding Nuclear

Adding NPPs to a State’s electrical grid presents many significant challenges, and especially so for Embarking States that do not currently have a nuclear energy program.

These challenges fall into five broad categories: adequate legal regime; qualified workforce; finances; support infrastructure; and, an informed public.

First, a legal regime that provides for a strong, independent, consistent, competent and publicly open regulator, with clearly-defined responsibility and appropriate authority to ensure that licensed entities are safely and securely operating and maintaining NPPs is needed (NEA, 2014a). For instance, my review of the diverse nuclear regulatory frameworks used in the various OECD States indicates that there is no unified and consistent legal model that can be used world-wide in place of the individual disparate national requirements presently utilized.

Second, an indigenous work force with the technical and scientific expertise necessary to design, construct, operate, maintain and oversee the safety and security of

50 nuclear facilities is needed (IAEA, 2010). Presently, such educational preparation is conducted on an ad hoc basis, with each State, and their respective NNRA, establishing the minimum education requirements, if any, for NPP staff.

Third, the financial wherewithal to safely and securely construct, operate, maintain and decommission NPPs is critical. The IAEA’s Planning & Economic Studies Section

(PESS) provides services to Embarking States to assist these States in analyzing the economic viability of various energy sources (IAEA, 2014a), but finding financial backing may be challenging for Embarking States, especially if financial institutions such as the World Bank refuses to fund such projects (85).

Fourth, the development of the necessary support industries and indispensable physical infrastructure improvements is needed to ensure safe and secure construction, operation, maintenance and decommissioning. For instance, a state-of-the-art 1,000-MW

NPP is useless if the Embarking State’s electric grid is not robust enough to handle such a large point source of electricity. Likewise, if there are no indigenous support industries to assist in maintaining and refueling the NPP, the labor costs for importing the needed expertise could quickly become prohibitive.

And fifth, an informed and engaged public that can provide input and support to the development of public policies and regulatory decisions related to nuclear energy is vital.

85 “We don't do nuclear energy,” said World Bank president Jim Yong Kim as he and UN leader Ban Ki-moon outlined efforts to make sure all people have access to electricity by 2030. "The World Bank Group does not engage in providing support for nuclear power. We think that this is an extremely difficult conversation that every country is continuing to have. And because we are really not in that business our focus is on finding ways of working in hydroelectric power in geo-thermal, in solar, in wind," he said. "We are really focusing on increasing investment in those modalities and we don't do nuclear energy." Global Energy World (Nov. 27, 2013), “World Bank says no money for nuclear power”; http://www.globalenergyworld.com/news/9664/World_Bank_says_no_money_for_nuclear_power.htm

51 While this challenge has traditionally been the one that receives the least consideration, it has been found that early public involvement in large-scale energy projects will minimize the negative impacts of NIMBY (“not in my backyard”) attitudes by the general public

(Devine-Wright, 2011 (86)).

Since nuclear energy has both possible benefits and costs, policy-makers have to consider whether the benefits of nuclear energy outweigh its potential consequences in deciding whether to add to, or to continue its use, as a component of a State’s electrical supply. Since it is possible, with corresponding costs, to minimize and mitigate the consequences of likely potential accidents and intentional misuses, then there is another factor to consider – how much risk is acceptable before the costs of preventive and mitigative measures become so excessive as to make the use of nuclear energy uneconomical? (87)

1.5 Nuclear Today

The first demonstration of electricity generated by a nuclear reactor – albeit only enough electricity to power four 100-watt lightbulbs for an hour – occurred in 1951 at the

Experimental Breeder Reactor unit 1 (EBR-I) station near Arco, Idaho. Three years later, the Obninsk Atomic Power Station in the former U.S.S.R. provided about 5-megawatts of electricity to the local electrical grid; however, the first industrial scale NPP, with four

60-MWe reactors, was the U.K.’s Calder Hall, which was first connected to the electric

86 Devine‐Wright (2011) “Public engagement with large‐scale renewable energy technologies: breaking the cycle of NIMBYism”; Wiley Interdisciplinary Reviews: Climate Change, 2(1), 19-26. 87 The same concern exists for other non-energy-production uses of nuclear sciences and technology – one can virtually eliminate the possibility of nuclear materials being diverted for inimical purposes by putting into place more stringent security requirements, but at some point, such requirements becomes cost-prohibitive.

52 grid in 1956. Since these first demonstrations of the viability of energy production by nuclear reactors, almost three dozen States have utilized nuclear energy for civilian commercial purposes.

As detailed in Table 1-2: World Nuclear Reactors, and shown inNumber of Civilian

Nuclear Power Reactors by Country and Status (Source: IAEA Power Reactor

Information System, August 2019) Figure 1-1: Number of Civilian Nuclear Power

Reactors by Country and Status, as of August 2019, thirty-one States (88) operate 444 nuclear power reactors, which produced about 10.3-percent of the world's electricity (see with a combined total of 18,145 reactor-years of operation.

88 Three States – Italy (Caorso, Enrico Fermi, Garigliano, Latina); Kazakhstan (Aktau); and, Lithuania (Ignalina 1 & 2) – had operating NPPs and do not presently have any; however, both Kazakhstan and Lithuania are planning to build new NPPs. Four other States began construction but never operated their NPPs: Austria, by referendum in 1978, permanently closed Zwentendorf, a 3-unit 692 MWe BWR NPP before if began operations. With financial and technical aid from the U.S.S.R., Cuba was constructing Juragua, a 2-unit 440 MWe VVER NPP, and Poland was constructing Żarnowiec, a 4-unit 440 MWe VVER NPP, but these NPPs were abandoned following the dissolution of the U.S.S.R.. In 1986, the Philippines abandoned construction of Bataan, a single unit 621 MWe PWR NPP following the Chernobyl nuclear disaster and amid concerns over corruption. Belgium, Germany, Spain, Switzerland, and Taiwan have announced a phase-out of nuclear power.

53 1 1

Table 1-2: World Nuclear Reactors

Source: adapted from WNA’s “World Nuclear Power Reactors & Uranium Requirements”, dated August 2019,

http://www.world-nuclear.org/information-library/facts-and-figures/world-nuclear-power-reactors-archive/reactor-archive-august-2019.aspx

and IAEA’s Power Reactor Information System (PRIS), accessed August 18, 2019

https://pris.iaea.org/pris/

Electricity Reactors Reactors Under Reactors State (89) Reactors Planned Generation 2018 Operable (90) Construction (91) Proposed

TWh (92) No. No. %e MWenet MWegross No. MWegross No. MWegross

Argentin 6.5 4.7 3 1,702 1 27 1 1,150 2 1,350 a

Armenia 1.9 25.6 1 376 0 0 0 0 1 1,060 Banglad 0 0 0 0 2 2,400 0 0 2 2,400 esh

Belarus 0 0 0 0 2 2,388 0 0 2 2,400

Belgium 27.3 39.0 7 5,943 0 0 0 0 0 0

Brazil 14.8 2.7 2 1,896 1 1,405 0 0 4 4,000

Bulgaria 15.4 34.7 2 1,926 0 0 1 1,000 1 1,000

Canada 94.5 14.9 19 13,553 0 0 0 0 2 1,500 China, 277.1 4.2 47 45,688 11 10,005 43 50,900 170 199,610 PR China, 26.7 11.4 4 3,719 2 2,600 0 0 0 0 R (Taiwan) Czech 28.3 34.5 6 3,932 0 0 2 2,400 2 2,400

Rep.

Egypt 0 0 0 0 0 0 4 4,800 0 0

Finland 21.9 32.5 4 2,764 1 1,720 1 1,250 0 0

France 395.9 71.7 58 63,130 1 1,750 0 0 0 0 German 71.9 11.7 7 9,444 0 0 0 0 0 0 y

89 Developed States are bolded; Developing States are italicized; and Embarking States are underlined. 90 During the timeframe of 1996-2016, 80 reactors were retired as 96 started operation. The reference scenario in the 2017 edition of WNA’s The Nuclear Fuel Report (Table 2.4) has 140 reactors closing by 2035, and 224 new ones coming online (includes 22 Japanese reactors online by 2035). 91 Includes units where construction is currently suspended, i.e., Angra 3 (Brazil); Baltic 1 (Russian Federation); Lungmen 1&2 (ROC/Taiwan); and, V.C. Summer 2&3 (U.S.) 92 A Terawatt-hour (TWh) is one million megawatt-hours (MWh) of power. “%e” is the percentage of electricity that nuclear supplies compared to the total supplied by all sources.

54 Table 1-2: World Nuclear Reactors

Source: adapted from WNA’s “World Nuclear Power Reactors & Uranium Requirements”, dated August 2019,

http://www.world-nuclear.org/information-library/facts-and-figures/world-nuclear-power-reactors-archive/reactor-archive-august-2019.aspx

and IAEA’s Power Reactor Information System (PRIS), accessed August 18, 2019

https://pris.iaea.org/pris/

Electricity Reactors Reactors Under Reactors State (89) Reactors Planned Generation 2018 Operable (90) Construction (91) Proposed

TWh (92) No. No. %e MWenet MWegross No. MWegross No. MWegross

Hungary 14.9 50.6 4 1,889 0 0 2 2,400 0 0

India 35.4 3.1 22 6,219 7 5,400 14 10,500 28 32,000

Iran 6.3 2.1 1 915 0 0 2 2,114 5 2,760

Japan 49.3 6.2 33 31,679 2 2,756 1 1,385 8 11,562

Jordan 0 0 0 0 0 0 0 0 1 1,000 Kazakhst 0 0 0 0 0 0 0 0 2 600 an Korea, 127.1 23.7 24 23,231 4 5,600 0 0 2 2,800

RO Lithuani 0 0 0 0 0 0 0 0 2 2,700 a

Mexico 13.2 5.3 2 1,600 0 0 0 0 3 3,000 Netherla 3.3 3.1 1 485 0 0 0 0 0 0 nds

Pakistan 9.3 6.8 5 1,355 2 2,322 1 1,170 0 0

Poland 0 0 0 0 0 0 0 0 6 6,000

Romania 10.5 17.2 2 1,310 0 0 2 1,440 1 720

Russia 191.3 17.9 36 29,139 6 4,973 24 25,810 22 21,000 Saudi 0 0 0 0 0 0 0 0 16 17,000

Arabia Slovak 13.8 55.0 4 1,816 2 942 0 0 1 1,200 Rep.

Slovenia 5.5 35.9 1 696 0 0 0 0 1 1,000 South 10.6 4.7 2 1,830 0 0 0 0 8 9,600

Africa

Spain 53.4 20.4 7 7,121 0 0 0 0 0 0

Sweden 65.9 40.3 8 8,376 0 0 0 0 0 0 Switzerl 24.5 37.7 5 3,333 0 0 0 0 0 0 and

Thailand 0 0 0 0 0 0 0 0 2 2,000

Turkey 0 0 0 0 1 1,200 3 3,600 8 9,500

Ukraine 79.5 53.0 15 13,107 0 0 2 1,900 2 2,400

UAE 0 0 0 0 4 5,600 0 0 0 0

55 Table 1-2: World Nuclear Reactors

Source: adapted from WNA’s “World Nuclear Power Reactors & Uranium Requirements”, dated August 2019,

http://www.world-nuclear.org/information-library/facts-and-figures/world-nuclear-power-reactors-archive/reactor-archive-august-2019.aspx

and IAEA’s Power Reactor Information System (PRIS), accessed August 18, 2019

https://pris.iaea.org/pris/

Electricity Reactors Reactors Under Reactors State (89) Reactors Planned Generation 2018 Operable (90) Construction (91) Proposed

TWh (92) No. No. %e MWenet MWegross No. MWegross No. MWegross

U.K, 59.1 17.7 15 8,883 1 1,720 3 5,060 6 7,820

U.S. 808.0 19.3 97 98,699 4 5,000 3 2,550 18 18,996 Uzbekist 0 0 0 0 0 0 2 2,400 2 2,400 an Totals: 2,563 ~10.3 444 395,756 54 57,808 111 121,829 330 360,782 Table 1-2: World Nuclear Reactors

56

Figure 1-1: Number of Civilian Nuclear Power Reactors by Country and Status (Source: IAEA

Power Reactor Information System, August 2019)

57

Figure 1-2: Timeline of installed/commissioned, and permanently shutdown/decommissioned nuclear power plants per year and State, with net addition/subtraction and significant accidents.

(Source: IAEA Power Reactor Information System, August 2019)

58 Fifty-four new NPPs are being constructed in 18 States, 111 NPPs are planned to be

constructed in 18 States, and 330 NPPs are proposed (93) to be constructed in 31 States

(World Nuclear Association, 2019).

1.5.1 Developed States

There are seventeen Developed States (94) that have an existing commercial nuclear

energy program, operating 300 of the 444 NPPs: Belgium, Canada, Republic of China

(Taiwan), Czech Republic, Finland, France, Germany, Japan, Republic of Korea,

Netherlands, Slovak Republic, Slovenia (95), Spain, Sweden, Switzerland, U.K., and the

U.S. Eight Developed States are augmenting their existing nuclear energy sector with the

construction of 17 new reactors: Republic of China (Taiwan), Finland, France, Japan,

Republic of Korea, Slovak Republic, U.K., and U.S. Five Developed States are planning

to construct an additional ten reactors: Czech Republic, Finland, Japan, U.K., and U.S.

Eight Developed States are proposing to construct up to 40 new reactors by mid-century:

93 For the purposes of this dissertation, the following definitions apply: Operating/Operable: The reactor/NPP is constructed and connected to the electric grid, but may not be generating electricity due to an outage for refueling and/or maintenance, or be in an extended shutdown; Under Construction: actively building, or major refurbishment under way of a previously idled construction; Planned: Approvals, funding, or major commitment in place, but NPP not yet being constructed; and, Proposed: Specific program or site proposals, with expected NPP operation greater than 10 years from present. For example, the People’s Republic of China (PRC) presently has 15 NPPs with 45 operating reactors, 13 reactors under construction at seven NPPs, 40 planned and 179 proposed reactors at about 23 NPP sites. 94 For the purpose of this dissertation, “Developed States” are those 39 States or regions that the International Monetary Fund (IMF) classifies as “Advanced Economies”. 1.1 International Monetary Fund, “World Economic Outlook, October 2018, Challenges to Steady Growth; https://www.imf.org/en/Publications/WEO/Issues/2018/09/24/world-economic-outlook-october-2018.

95 The KRŠKO NPP is sited in Slovenia and is co-owned by Croatia.

59 Canada, Czech Republic, Japan, Republic of Korea, Slovak Republic, Slovenia, U.K., and

U.S.

1.5.2 Developing States

Most new NPPs are being constructed, planned, or proposed in Developing States (96).

There are 144 operating NPPs in fourteen Developing States: Argentina, Armenia, Brazil,

Bulgaria, People’s Republic of China (PRC), Hungary, India, Iran, Mexico, Pakistan,

Romania, Russian Federation, South Africa, and the Ukraine. Six Developing States are augmenting their existing nuclear energy sector with the construction of 31 new reactors:

Argentina, Brazil, PRC, India, Pakistan, and Russian Federation. Ten Developing States are planning to construct an additional 92 reactors: Argentina, Bulgaria, PRC, Hungary,

India, Iran, Pakistan, Romania, Russian Federation, and the Ukraine. Twelve Developing

States are proposing to construct up to 247 new reactors by mid-century: Argentina,

Armenia, Brazil, Bulgaria, People’s Republic of China (PRC), India, Iran, Mexico,

Romania, Russian Federation, South Africa, and the Ukraine.

96 For the purpose of this dissertation, “Developing States” are those nations that the IMF classifies as “Emerging Market and Developing Economies.” This includes States in the Commonwealth of Independent States, Emerging and Developing Asia, ASEAN-5, Emerging and Developing Europe, Latin America and the Caribbean, Middle East, North Africa, Afghanistan, and Pakistan, Middle East and North Africa, and Sub-Saharan Africa. International Monetary Fund (2018) “Country Composition of WEO Groups”; https://www.imf.org/external/pubs/ft/weo/2018/02/weodata/groups.htm

60 1.5.3 Embarking States

For the purpose of this dissertation, “Embarking States” (97), (98) are those States that do not presently have a nuclear energy component to their electrical grid, but:

(i) Have implemented the necessary legal and regulatory infrastructure and are in the

process of constructing their initial NPP(s);

(ii) Are finalizing the necessary legal and regulatory infrastructure and have

contracted, or are in the process of contracting, with nuclear vendors, for the

construction of their initial NPPs; and/or,

(iii)Have officially made the policy decision to incorporate nuclear power and are

starting to develop the necessary legal and regulatory infrastructure.

The twelve “Embarking States” are: Bangladesh, Belarus, Egypt, Jordan, Kazakhstan,

Lithuania, Poland, Saudi Arabia, Thailand, Turkey, United Arab Emirates (UAE), and

Uzbekistan. Four Embarking States are presently constructing nine NPPs: Bangladesh,

97 The terms “newcomer countries,” “embarking countries,” and “emerging nuclear energy countries” are also found in the literature. 98 Belarus, Kazakhstan, Lithuania, and Poland are included as “Embarking Nations” even though all four were operating or constructing reactors with aid from the U.S.S.R. at the time of the dissolution of the U.S.S.R.; these reactors have either been permanently shutdown or construction was halted before they became operational:

 Belarus had planned in the 1980’s to build the MINSK NPP, with two VVER-1000 1,000-MWe reactors, to provide district heating and electricity to Minsk, but the plant was canceled in 1988 before it started.  Kazakhstan’s Aktua NPP, a prototype sodium-cooled fast breeder reactor design (BN-350) that produced 150 MW of electricity, 120,000 m3/day of desalinated water, and plutonium, and operated from 1972 to 1999 when it was shut down due to economic reasons.  Lithuania’s Ignalina NPP, with two 1185 MWe RBMK (Reaktor Bolshoy Moshchnosti Kanalnyy – High Power Channel-type Reactor) reactors (a larger version of the infamous Chernobyl reactors), supplied about 70% of the country’s electricity from 1983 to 2009 when the NPP was permanently shut down as part of the agreement for Lithuania’s entry into the European Union.  Poland approved the construction in 1982 of the Żarnowiec NPP, with four VVER-440 reactors, but the NPP was officially canceled in 1990 before it was completed.

61 Belarus, Turkey, and UAE. Three Embarking States are planning to construct nine reactors: Egypt, Turkey, and Uzbekistan. Ten Embarking States are proposing to construct up to 43 new reactors by mid-century: Bangladesh, Belarus, Jordan,

Kazakhstan, Lithuania, Poland, Saudi Arabia, Thailand, Turkey, and Uzbekistan.

In addition to the twelve Embarking States, at least another thirty Developing States are either developing nuclear energy plans or are seriously discussing nuclear energy as a policy option. For instance, in 2011, the Nigerian Atomic Energy Commission (NAEC) signed a Memorandum of Agreement (MOA) with the State Atomic Energy Corporation of the Federation of Russia (Rosatom (99)) to build two two-unit NPPs by 2035. In July

2015, Benin, Burkina Faso, Ghana, Mali, Niger, Nigeria, and Senegal created the West

African Integrated Nuclear Power Group (WAINPG) in preparation for planning a regional nuclear power program. In 2018, the government of Ghana announced that it had signed its own MOA with Rosatom for the construction of an NPP.

The World Nuclear Association (100) has identified Algeria, Chile, Kenya, Laos, and

Morocco as developing nuclear energy plans. Algeria has nuclear cooperation agreements with Russia, the U.S., PRC, and France. The Chilean Atomic Energy

Commission (Comisión Chilena de Energía Nuclear, CCHEN), has nuclear cooperation agreements with France and Russia. Kenya has nuclear cooperation agreements with

Russia, the ROK, PRC, and France. Laos signed a MOA with Rosatom in 2015 to build

99 Established in 2007 and also known as the Rosatom State Nuclear Energy Corporation or the Rosatom State Corporation, Rosatom is a Russian state corporation comprised more than 360 nuclear energy enterprises, including scientific research organizations, Russia’s nuclear weapons complex, and the world's only nuclear-powered icebreaker fleet. Rosatom is the rough equivalent to the U.S. Department of Energy. 100 WNA, “Emerging Nuclear Energy Countries,” updated July 2018, http://www.world-nuclear.org/information- library/country-profiles/others/emerging-nuclear-energy-countries.aspx

62 a two-unit NPP. Morocco has nuclear cooperation agreements with Russia, PRC, and

France, and has announced plans to build two NPPs for electricity and desalination.

According to the IAEA (101), States seriously discussing nuclear energy as a policy option include Albania, Azerbaijan, Bolivia, Cuba, Croatia, Estonia, Latvia, Indonesia,

Libya, Mongolia, Namibia, Paraguay, Peru, Philippines, Qatar, Serbia, Singapore, Sri

Lanka, Sudan, Syria, Tunisia, and Venezuela.

In Africa and the Middle East, the Gulf Cooperation Council (GCC (102)) has been investigating the construction of NPPs for both electricity generation and desalination purposes since 2006, and the UAE is actively constructing NPPs. Sudan signed an agreement with Rosatom in 2017 for assistance in developing a nuclear power infrastructure. Tunisia signed an agreement with France in 2006, with Rosatom in 2015, and with the PRC’s China National Nuclear Corporation (CNNC) in 2017 for assistance in developing a nuclear power infrastructure. Israel is developing plans to add nuclear energy.

In the Americas, Bolivia signed a nuclear cooperation agreement with Russia in 2015 for assistance in building a research reactor and NPPs. Paraguay signed an agreement with Rosatom in October 2016 for assistance in developing a nuclear power infrastructure. Venezuela signed agreement with Russia in 2007, and with Iran in 2009 for assistance in developing a nuclear power infrastructure.

101 IAEA, “International Status and Prospects for Nuclear Power 2017” (GOV/INF/2017/12-GC(61)/INF/8), dated 28 July 2017 (https://www-legacy.iaea.org/About/Policy/GC/GC61/GC61InfDocuments/English/gc61inf-8_en.pdf) 102 The GCC (Cooperation Council for the Arab States of the Gulf ), is a regional intergovernmental political and economic organization of Arab States of the Persian Gulf, i.e., Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates.

63 In Asia, Azerbaijan, which abandoned construction of 1,000-MWe NPP when the

U.S.S.R. dissolved, is constructing a research reactor, and is considering building a

1.500-MWe power reactor with assistance from the Russian Federation. Indonesia presently operates three research reactors, and its NNRA, Badan Pengawas Tenaga

Nuklir (BAPETEN), founded in 1998, was reviewed in 2009 by IAEA and found to be ready to implement a nuclear energy program. Mongolia signed a nuclear cooperation agreement with the Russian Federation in 2010 for assistance in building NPPs. The

Philippines is investigating refurbishing and operating the two-unit 621-MWe

Westinghouse-supplied Bataan NPP, which was completed in 1984 but never operated; and, is considering construction of two 1,000-MWe Korean Standard Nuclear Plants to be supplied by KEPCO. Sri Lanka signed nuclear cooperation agreements with both India and Pakistan in 2015, and is having personnel trained in the Russian Federation. The

Democratic People’s Republic of [North] Korea (DPRK) stated its intention in 2009 to construct indigenously-produced NPPs, since previous ventures with nuclear suppliers failed due to funding issues. Viet Nam announced in 2010 plans to build 14 nuclear reactors at eight sites, but in 2016 construction was deferred due to economic viability.

In Europe, Albania and Croatia are proposing to jointly build an NPP. Estonia and

Latvia are planning to invest in the proposed Lithuanian Visaginas NPP, and Estonia is considering investing in the proposed Finnish NPP. Italy, which had operated four NPPs, proposed in 2009 to build four European Pressurized Reactors, supplied by France’s

Areva; however, the results of a political referendum halted those plans.

A number of other States are discussing adding nuclear energy, but are hesitant to move forward due to a variety of factors including: not having the requisite expertise to

64 design, build, operate, maintain, and oversee; a lack of legal authority; concerns over the financial resources; and, political/public opposition.

1.5.4 Russian Federation and PRC Nuclear Marketing

To expand their own influence, Russian and Chinese state-owned nuclear companies have been aggressive in offering technical and financial assistance to build NPPs in

Embarking States. The Russian Federation’s Rosatom has announced agreements, or that it is in active negotiation, with 25 States, while the PRC’s National Nuclear Corporation

(CNNC), China General Nuclear Power Group (CGN), and its State Power Investment

Corporation (SPIC) via its nuclear power business State Nuclear Power Technology

Corporation (SNPTC), have announced agreements, or that they are in active negotiation with, 17 States. A list of these States is included in Table 1-3.

Table 1-3: States Being Offered Technical and Financial Assistance to Construct NPPs by † Russian Federation and/or ‡ PRC

Source: World Nuclear Association (2019) “Plans For New Reactors Worldwide”; https://www.world- nuclear.org/information-library/current-and-future-generation/plans-for-new-reactors-worldwide.aspx † Algeria † Ghana ‡ Pakistan †, ‡ Turkey

†, ‡ Argentina † Indonesia † Paraguay ‡ Uganda

† Armenia †, ‡ Iran † Philippines ‡ UK

† Bangladesh † Jordan ‡ Poland † Uzbekistan

† Bolivia ‡ Kenya ‡ Romania † Venezuela

†, ‡ Brazil †, ‡ Kazakhstan † Rwanda † Vietnam

†, ‡ Cambodia † Laos †, ‡ South Africa † Zambia.

† Cuba † Morocco †, ‡ Sudan

65 Table 1-3: States Being Offered Technical and Financial Assistance to Construct NPPs by † Russian Federation and/or ‡ PRC

Source: World Nuclear Association (2019) “Plans For New Reactors Worldwide”; https://www.world- nuclear.org/information-library/current-and-future-generation/plans-for-new-reactors-worldwide.aspx †, ‡ Egypt † Myanmar ‡ Thailand

† Ethiopia † Nigeria † Tunisia

Table 1-3: States Being Offered Technical and Financial Assistance to Construct NPPs by

Russian Federation and/or PRC

It should be noted that the Russian Federation and PRC’s use of nuclear energy assistance present strong echoes to the U.S. and the U.S.S.R. utilization of foreign aid to

Third World nations to increase their respective spheres of influence during the Cold

War (103).

1.6 Nuclear Governance

As described above, there is presently no unitary international organization that provides for the harmonization and normalization of safety and security governance (104) of nuclear technologies and materials worldwide. Instead, there are multiple

103 Guan-Fu (1983) “Soviet Aid to the Third World: An Analysis of Its Strategy”; Soviet Studies, 35(1), 71-89. Retrieved from http://www.jstor.org/stable/151493.

104 For the purposes of this dissertation, GOVERNANCE is defined as the practices and institutions by which authority is exercised to achieve shared goals. This includes (1) the process by which goals are selected, monitored, and replaced, (2) the capacity of the involved organization(s) to effectively formulate and conduct activities to obtain the goals, and (3) the willingness of individuals, and governmental and non-governmental organizations to support the accomplishment of activities to achieve agreed-upon goals. Adapted from Kaufmann, Kraay, & Zoido (1999) “Governance Matters”; World Bank Policy Research Working Paper 2196; and, from Rhodes (1996) “The New Governance: Governing Without Government”; Political studies, 44(4), 652-667.

66 organizations that address portions of this need, but not all of it. For instance, instead of serving as a global regulator of nuclear science and technology development and usage, the IAEA has neither the de jure nor de facto authority, as envisioned by Acheson,

Lilienthal, and Baruch, to regulate the peaceful and safe development of commercial nuclear technologies globally (State; 2018 (105)).

This lack of an international organization that could develop unifying safety governance standards could adversely impact the continued safe use and development of nuclear technologies, especially for those States that do not have the requisite resources and expertise to independently develop their own nuclear governance infrastructure.

1.6.1 Need for International Technical and Scientific Support Organization

Not only do these under-resourced NNRAs need assistance in developing their regulatory infrastructure, they are, by definition, in need of technical support in order to effectively implement their oversight responsibilities. As such, there is a corresponding need for an international technical and scientific support organization (TSO) – either embedded in the proposed IGO or closely affiliated to it – to provide assistance to these

NNRAs in addressing the technical and scientific issues that arise in designing, constructing, operating, maintaining, and decommissioning (106) nuclear power plants and facilities.

105 U.S. Department of State (2018) “The Acheson-Lilienthal & Baruch Plans, 1946”; https://history.state.gov/milestones/1945-1952/baruch-plans 106 Decommissioning is the “…process of safely closing a nuclear power plant (or other facility where nuclear materials are handled) to retire it from service after its useful life has ended. This process primarily involves decontaminating the facility to reduce residual radioactivity and then releasing the property for unrestricted or

67 1.6.2 Collaboration with Mature NNRAs

The IAEA actively encourages its member States to work collaboratively with other, established NNRAs for specific assistance on developing and improving their individual regulatory programs. Some NNRAs, especially those in States with a small existing nuclear energy program, or those that are considering adding a nuclear component to their energy portfolio, in lieu of developing State-specific regulations, do as IAEA encourages, and adapt the regulations developed by the NNRA of the State from which they procure the nuclear technology, modifying these regulations as needed so as to fit within their State’s existing legal framework. This option is normally used in those

States that primarily utilize a single nuclear technology vendor, and is very common for those States that have acquired nuclear technologies from the U.S.S.R. and its successor

State, the Russian Federation (107). Other NNRAs may piece together their own regulations and standards from multiple sources, especially if their national nuclear energy program is comprised of a variety of nuclear technologies from several vendors,

(under certain conditions) restricted use. This often includes dismantling the facility or dedicating it to other purposes. Decommissioning begins after the nuclear fuel, coolant, and radioactive waste are removed.” USNRC (2018) http://www.nrc.gov/reading-rm/basic-ref/glossary/decommissioning.html 107 Russian state-owned nuclear companies are actively working with Developing and Embarking States to supply technical and financial aid. See Table 1-3. WNA, “Emerging Nuclear Energy Countries,” updated July 2018, http://www.world-nuclear.org/information- library/country-profiles/others/emerging-nuclear-energy-countries.aspx

68 such as is the case of the PRC (108), (109). However, IAEA’s recommended option presumes that the requesting State will approach one of the more mature NNRAs for assistance, as opposed to their near-peers since there exists a wide range of competencies present in the various NNRAs.

For the purpose of this dissertation, States with mature nuclear programs include the

U.S., France, Russia, South Korea, Canada, and Japan. These States have been selected based on length of time they have had a nuclear energy program, their safety record, and their active engagement in global nuclear commerce.

1.6.3 Challenges with Indigenously-created Nuclear Regulatory

Infrastructure

If Embarking States either create their own indigenous nuclear regulatory infrastructure, or adapt a modified version of the regulatory infrastructure from the supplying nuclear vendor’s home country, there will then be yet more States with unique, and possibly contradictory, regulatory requirements. By creating additional sui generis national nuclear regulatory regimes, there could be that many more impediments to:

108 It should be noted that the PRC is making a practice of not just buying foreign nuclear technologies, but also the underlying intellectual property, and then developing both an indigenously-produced NPP for internal consumption and export, and an associated regulatory infrastructure. For instance, in 2008, the PRC’s State Nuclear Power Technology Corp (SNPTC) signed a technology transfer agreement with Westinghouse for the AP1000, a 1,000- MWe PWR; and, this agreement included Westinghouse providing technical assistance on creating a Chinese variant, the CAP1400, a 1,400-MWe PWR. 109 Like Russia, Chinese state-owned nuclear companies – China National Nuclear Corporation (CNNC), China General Nuclear Power Group (CGN), and its State Power Investment Corporation (SPIC) via its nuclear power business State Nuclear Power Technology Corporation (SNPTC) – are also actively working with Developing and Embarking States to supply technical and financial aid. See Table 1-3. Turkey is working with both Russia and the PRC, and plans to use the supplying State’s regulations to oversee the supplied nuclear facilities. Nicobar Group (2017) “China’s Nuclear Industry 2017-2018 – A Tightly Coiled Spring”

69 o policy makers’ support of nuclear energy in their State, since they will need to

create a regulatory regime and NNRA, and overcome potential public opposition;

o nuclear vendors ability to support their products since they will need to customize

their products to meet the requirements of each purchasing State;

o the newly established NNRA’s ability to exchange good practices and lessons-

learned with other NNRAs, which could lead to missed opportunities to identify

and address early common-cause emerging safety and security issues, and their

ability to cooperate on cross-cutting issues since the disparate, and possibly

conflicting, State-specific nuclear regulatory regimes could hinder the timely

recognition of issues identified by one NNRA as being of interest to another

NNRA (110); and,

110 This is a situation I was intimately acquainted with when, as the USNRC Lead Project Manager, I authored Generic Letter (GL) 97-01, “Degradation of Control Rod Drive Mechanism Nozzle and Other Vessel Closure Head Penetrations” (http://www.nrc.gov/reading-rm/doc-collections/gen-comm/gen-letters/1997/gl97001.html), which described international occurrences of primary water stress corrosion cracking (PWSCC) in pressurized water reactors (PWRs). The GL requested that U.S. PWR licensees provide information on their inspection programs for these penetrations. However, while these licensees followed existing USNRC inspection guidelines, three through- wall leaks were identified in the Davis-Besse reactor head in 2002, including a vessel head cavity that measured 7- inches by 4-to-5 inches by 6.6-inches deep, indicating that leakage had occurred over an extended period and that the licensee’s inspection programs had failed to identify and correct leakage in a timely manner. The USNRC’s subsequent Lessons Learned Task Force (LLTF) internal review of this event found that the USNRC did not provide effective oversight of licensee head inspection programs: While much was known within the NRC about nozzle cracking and boric acid corrosion, other important details associated with these two issues, such as the number of nozzle cracking events, as well as insights from foreign operating experience and domestic research activities, were not widely recognized or were viewed as not being applicable. USNRC LLTF Report, pg. viii, http://www.nrc.gov/reactors/operating/ops-experience/vessel-head- degradation/lessons-learned/lltf-report.html If the USNRC had cooperated with its foreign counterparts on this issue when it was first recognized, it is highly probable that the leakage and subsequent near-miss, i.e., a possible rupture of the containment pressure boundary, would have been detected, and prevented or mitigated, much earlier.

70 o support by indigenous citizenry and neighboring States since these State-specific

nuclear regulatory regimes may be regarded as inadequate.

In addition, there could be concerns regarding whether safety and security issues will be adequately addressed by each NNRA in a consistent and harmonized manner, as opposed to the present practice of having distinct, State-specific approaches used to resolve what should be common concerns.

1.6.4 Benefits of Globally-Consistent Nuclear Regulatory Regime

Establishing and maintaining a clear and consistent nuclear regulatory regime across all of the States that operate, or propose to operate, NPPs could provide policy-makers,

NNRAs, vendors, and the public reasonable assurance on a variety of issues. For instance, NPPs could be safely and securely designed, built, maintained, operated, and decommissioned in a consistent and harmonized manner. There could be adequate regulatory oversight at all stages of the NPP’s operating life, from initial consideration of adding nuclear to a State’s electrical grid to site- and design- selections, through construction and operation, and into decommissioning, disposal, and final remediation of the NPP site (111). In addition, NNRAs could more easily exchange information and best practices, and cooperate on addressing common areas of concern.

Embarking States are particularly in need of assistance to develop the necessary legal and regulatory infrastructure to address these challenges. In addition, there are a number

111 Remediation of an industrial site involves the return of the site to either “greenfield” or “brownfield” conditions. In the former, the site is returned to the same conditions that existed prior to its development as an industrial site and thus has no restrictions on its future use arising from its prior use as an industrial site, while in the latter some degree of contamination may remain in situ and thus future uses of the site may be restricted.

71 of Developing States – and even some Developed States, especially those with smaller nuclear energy programs – which could benefit from assistance to normalize and maintain consistency with global standards in nuclear oversight. In addition to developing the legal means to ensure safety and security of their nuclear energy sector,

Embarking States will also need to ensure that safety has an innate priority over all other competing goals. By establishing a robust safety culture (112) – an emphasis, at all levels in the organization, on ensuring that safety has a priority over all other competing goals – within the Embarking State’s NNRA and the commercial nuclear industry, there could be a greater assurance that adequate levels of safety, security and safeguards are achieved and maintained.

1.7 Categories of Existing NNRAs

Based on my insights from my review of the literature (113), and taking into consideration the characteristics enumerated in NEA’s Green Booklet No. 7185, NNRAs can be classified in three main categories, as noted in Table 1-4:

112 Bredimas & Nuttall (2008) “An international comparison of regulatory organizations and licensing procedures for new nuclear power plants”; Energy Policy, 36(4), 1344-1354. IAEA (2006) “Effective Nuclear Regulatory Systems: Facing Safety and Security Challenges, Proceedings of an International Conference, Moscow, 27 February – 3 March 2006”; IAEA STI/PUB/1272 113 While the concept of safety has been enshrined in commercial nuclear power programs since their inception, the focus had been primarily on ensuring that the science and engineering aspects of the reactor’s design was adequate so as to minimize the possibility of a catastrophic accident; and, secondarily, on ensuring worker safety. Following the 1979 Three Mile Island accident, greater attention was brought to bear on human errors, such as inadequate operator training, lax management and regulatory oversight, and failures of operators to follow established procedures, which could impact the safe operation of the NPP. However, it was the INSAG’s findings on the root causes of the 1986 Chernobyl accident that firmly established how fundamental is the need for a “nuclear safety culture,” The International Atomic Energy Agency’s (IAEA) International Nuclear Safety Advisory Group (INSAG), a group of experts working in regulatory organizations, research and academic institutions and the

72 Table 1-4: Three Categories of NNRAs

1) Has sufficient legal authority, resources, technical expertise, and independence to be an effective regulator. 2) Has sufficient resources and technical expertise, but has only nominal legal authority and independence. 3) Has insufficient legal authority, resources, and technical expertise to be an effective regulator. Table 1-4: Three Categories of NNRAs

1.7.1 Category 1 NNRAs

Based on my research and the results of my interviews, I have concluded that three

NNRAs possess – with caveats – sufficient legal authority, resources, technical expertise, and independence to be an effective regulator – the U.S. Nuclear Regulatory

Commission, the Canadian Nuclear Safety Commission, and the Japan Nuclear

Regulation Authority (114).

nuclear industry that provides recommendations on current and emerging nuclear safety issues to the IAEA, the nuclear community and the public, defined “safety culture” as: ...that assembly of characteristics and attitudes in organizations and individuals which establishes that, as an overriding priority, nuclear plant safety issues receive the attention warranted by their significance. (IAEA, 1991) 114 “Effective independence generally means that the regulatory body must be able to make decisions for the regulatory control of facilities and activities without undue pressure or constraints from the government, from any organization promoting the nuclear industry, those who are opposed to the use of nuclear energy, or those it regulates. As illustrated by the example of the U.S. NRC, it is possible for states to put in place a legislative framework that ensures regulatory independence in the nuclear sector.” Bacon-Dussault (2013) “Independence of nuclear regulators in the aftermath of the Fukushima Daiichi nuclear accident: A comparative approach”; IAEA International Conference on Effective Nuclear Regulatory Systems, Ottawa, Ontario.

73 1.7.1.1 U.S. Nuclear Regulatory Commission

The USNRC is the independent agency that reports to the U.S. Congress, and is authorized (115) to regulate and oversee all commercial uses of nuclear materials in the

U.S. (116), including the mostly non-governmental (117) commercial NPPs. The USNRC began operations on January 19, 1975, as one of two successor agencies to the U.S.

Atomic Energy Commission (USAEC (118)), which was established to provide civilian control over the application and advancement of nuclear science and technologies following the end of WWII. While the USNRC has sufficient legal authority, financial

115 The USNRC’s enabling legislation is the Energy Reorganization Act of 1974, Pub. L. 93-438. 116 Section 274 of the AEA 1954 provides a statutory basis under which the USNRC can relinquish to requesting U.S. States, through an agreement signed by the State’s Governor and the USNRC’s Chairman, some portions of the USNRC’s regulatory authority to license and regulate byproduct materials, e.g., radioisotopes; source materials, e.g., uranium; and, certain quantities of special nuclear materials. These Agreement States then have the authority to license, regulate, and oversee the uses of these materials used or possessed within their borders; however, if the Agreement State fails to ensure the safety and security of these materials, the USNRC can unilaterally revoke the agreement and resume regulatory oversight. The 37 Agreement States provide regulatory oversight of about three- quarters of the approximately 20,000 active source, byproduct, and special nuclear materials licenses, while the USNRC oversees the remaining. USNRC, “Agreement States Program”, http://www.nrc.gov/about-nrc/state-tribal/agreement-states.html 117 An exception is the Tennessee Valley Authority (TVA), a federally-owned corporation, which presently has seven operating reactors at three NPPs. 118 The USAEC’s enabling legislation was the Atomic Energy Act of 1946, Public Law 79-585 (AEA 1946), also known as the McMahon Act after the Chair of the U.S. Senate’s Special Committee on Atomic Energy. The AEA 1946 was amended by the Atomic Energy Act of 1954, Pub. L. 83-703 (AEA 1954), to provide governmental support for the development of a U.S. civilian nuclear industry, including allowing for the patenting of new processes or technologies for generating nuclear energy. AEA 1954 also relaxed some of the restrictions on technical information exchanges with foreign governments which the McMahon Act had put into place following the disclosures of the U.S.S.R.’s efforts to steal nuclear secrets provided by the defection of Igor Gouzenko, a cipher clerk in the Soviet embassy to Canada.

74 resources, and technical expertise (119), recent appointments of Commissioners (120) with obvious biases (121) – either for or against – have led some critics to question the

USNRC’s present independence (122).

1.7.1.2 Canadian Nuclear Safety Commission

The Canadian Nuclear Safety Commission (CNSC, Commission Canadienne de

Sûreté Nucléaire) is an independent administrative tribunal authorized (123) to regulate the use of nuclear materials and energy in Canada. The CNSC, which began operations on

May 31, 2000, as the successor agency to the Atomic Energy Control Board (AECB (124)), was established to exercise greater authority to “regulate the development, production,

119 The USNRC’s Fiscal Year 2019 budget request was US$970.7 million for operating capital (a US$59.8 million increase over FY-2018), and 3,247 scientific, technical and professional staff (a decrease of 149 over FY-2018). USNRC (2018) FY2019 Budget Slides; https://www.nrc.gov/docs/ML1802/ML18023B461.pdf 120 When referred to as the “Commission,” it is understood to be the empaneled five Commissioners appointed by the U.S. President and confirmed by the U.S. Senate. The Commissioners formulate policies that the staff, i.e., the USNRC’s civil service employees, and its contracted subject matter experts, utilize in regulating the safe and secure commercial uses of nuclear material. The Commission has the final authority on all activities performed by the USNRC, including the adjudication of legal matters. 121 Its critics, including the Project On Government Oversight and the Union of Concerned Scientists, allege that the USNRC historically suffers from regulatory capture in that its actions has generally favored the interests of the U.S. nuclear industry to the detriment of the workers, public, and environment; conversely, the USNRC has also been criticized for impeding nuclear energy development in the U.S., mostly due to Commission positions on nuclear waste policy and responses to the Fukushima Daiichi nuclear disaster. Zander & Dennett (2016) “Watchdog Group Slams NRC Over Pilgrim Hearing”; Project On Government Oversight; https://www.pogo.org/analysis/2016/11/watchdog-group-slams-nrc-over-pilgrim-hearing/ UCS (2016) “Preventing an American Fukushima”; Union of Concerned Scientists; https://www.ucsusa.org/resources/preventing-american-fukushima 122 Former USNRC Chairman Gregory B. Jaczko discusses his concerns about the independence of the agency he was in charge of during the Fukushima nuclear accident in his apologia of his tenure: Jaczko (2019) Confessions of a Rogue Nuclear Regulator; Simon & Schuster; ISBN: 1476755760

123 The CNSC’s enabling legislation is the Nuclear Safety and Control Act (S.C. 1997, C. 9). 124 The AECB’s enabling legislation was the Atomic Energy Control Act, enacted on October 12, 1946. The AECB was established to provide for “control and supervision of the development, application and use of atomic energy and to enable Canada to participate effectively in measures of international control of atomic energy.”

75 and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information in Canada.” (CNSC 2018) Similar to the USNRC, the CNSC has sufficient legal authority, financial resources, and technical expertise (125). However, the CNSC reports to the Canadian Parliament through the

Minister of Natural Resources, which is responsible for advancing Canada’s nuclear industry, thus giving an appearance of potential concerns over the CNSC’s independence.

Further, as discussed in Chapter 2 of this dissertation, the 2008 dismissal of the CNSC’s

CEO by the Prime Minister over the handling of safety issues raises concerns about the

CNSC’s autonomy (126).

1.7.1.3 Japan Nuclear Regulation Authority

As discussed above, the Japan Nuclear Regulation Authority (JNRA) is now modeled on the USNRC and France’s ASN. Like the USNRC and the CNSC, the JNRA has sufficient legal authority, financial resources, and technical expertise (127), and has gained significant independence since it now under the Ministry of the Environment. However, the JNRA is still rebuilding its reputation and public support.

1.7.2 Category 2 NNRAs

There are three NNRAs in the second category, in that they have, with caveats, sufficient resources and technical expertise, but only nominal legal authority and

125 The CNSC’s Fiscal Year 2018 budget request was C$163.1 million for operating capital, and by more than 800 scientific, technical and professional staff. 126 O'Neill (2008/01/10) “Auditor-General's report identified 'deficiency' at AECL” The National Post, p. A1 127 The JNRA’s Fiscal Year 2016 budget was ¥57,434 million (approximately US$500 million) for operating capital, and by more than 955 scientific, technical and professional staff. JNRA (2017) NRA Annual Report FY 2016; http://www.nsr.go.jp/data/000253873.pdf

76 independence: France’s Autorité de Sûreté Nucléaire, the U.K.’s Office for Nuclear

Regulation, and the Korea Nuclear Safety and Security Commission.

1.7.2.1 Autorité de Sûreté Nucléaire

The Autorité de Sûreté Nucléaire (Nuclear Safety Authority, ASN) is the French administrative authority that has regulatory authority for nuclear safety and radiological protection. Founded in 2006 with the merger of the DGSNR (128) and the Divisions de

Sûreté Nucléaire et de Radioprotection (DSNR), ASN oversees the 58 nuclear reactors at

19 sites operated by the majority-government-owned (~85%) utility Électricité de France

(EdF). ASN has sufficient financial resources and technical expertise (129), but must obtain governmental approval for any major regulatory decisions.

1.7.2.2 Office for Nuclear Regulation

The U.K.’s Office for Nuclear Regulation (ONR) is responsible for regulation of nuclear safety and security across the UK. ONR was initially formed in 2011 as a non- statutory agency of the Health and Safety Executive (HSE), and then became an independent statutory corporation (130) in 2014 with the merger of HSE's Nuclear

Directorate – the Nuclear Installations Inspectorate, the Office for Civil Nuclear Security and the UK Safeguards Office – and the Department for Transport's Radioactive

128 Under Decree No. 2002-255 of 22 February 2002, the Direction Générale de la Sûreté Nucléaire et de la Radioprotection (General Directorate for Nuclear Safety and Radiological Protection) was formed by merging the Direction de la Sûreté des Installations Nucléaires (Directorate for Nuclear Installation Safety, DSIN) with the Office de Protection contre les Rayonnements Ionisants (Office for Protection against Ionising Radiation, OPRI). 129 ASN’s 2017 budget was €168.7 million (approximately US$192 million) for operating capital, and by more than 819 scientific, technical, and professional staff. ASN (2018) ASN Report on the State of Nuclear Safety and Radiation Protection in France in 2017; https://www.asn.fr/annual_report/2017gb/14/ 130 ONR’s enabling legislation is Part 3 of the “Energy Act 2013.”

77 Materials Transport Team. ONR is accountable to Parliament through the Department for Work and Pensions. While ONR has sufficient financial resources and technical expertise (131), it has been undergoing significant transitions in its legal authority and responsibilities, which has led to significant staffing turnover and reorganizations as it continues to develop its regulatory presence (132).

At the request of the U.K. government, in October 2013 the IAEA conducted a follow-up IRRS to review the framework for regulating safety of all nuclear facilities and activities in the U.K., and the progress made since the original 2006 IRRS on improving the effectiveness of the regulatory functions implemented by ONR. The follow-up IRRS mission identified a number of Recommendations, Suggestions, and Good Practices for the ONR to consider, including the suggestion for “developing a timetable with milestones for when all of the previously separate organizations will be fully integrated within ONR” (133).

1.7.2.3 Nuclear Safety and Security Commission

Similar to Japan’s NRA, the Republic of Korea reconstituted its nuclear regulator in

October 2011 following the Fukushima accident, inaugurated the Nuclear Safety and

Security Commission (NSSC) (134). The creation of the NSSC was intended to resolve the

131 ONR’s Fiscal Year 2017 budget was £70.7 million (approximately US$90 million), which was largely cost- recovered from users fees; and had a staff of about 600 scientific, technical and professional staff. 132 IAEA (2019) “IAEA Mission Says United Kingdom Committed to Enhancing Safety, Sees Areas for Further Improvement”; https://www.iaea.org/newscenter/pressreleases/iaea-mission-says-united-kingdom-committed-to- enhancing-safety-sees-areas-for-further-improvement 133 IAEA (2014) “Integrated Regulatory Review Service (IRRS) Follow-Up Report to the United Kingdom”; http://www-ns.iaea.org/downloads/actionplan/IRRS%20Mission%20(Follow%20up)%20to%20UK_2013.pdf 134 NSSC’s enabling legislation is Act No. 10912, “Act on the Establishment and Operation of the Nuclear Safety and Security Commission,” dated Jul. 25, 2011.

78 independence issue its predecessor, the Korean Institute of Nuclear Safety (KINS), had.

While KINS was organizationally under the Ministry of Education, Science, and

Technology (MEST), which has nuclear promotional responsibilities, NSSC now reports to the ROK president, and NSSC’s chairman has ministerial rank.

The NSSC, with support from KINS as its TSO, licenses and inspects nuclear activities in the ROK. It is responsible for enforcement, incident response and emergency response, non-proliferation and safeguards, export/import control and physical protection of nuclear activities. Also similar to the JNRA, the NSSC’s revised regulatory framework is modelled on the USNRC’s.

Among the concerns that led to the creation of the NSSC was the acknowledgment that while KINS had sufficient financial resources and technical expertise (135), it was closely tied to the ROK’s nuclear industry (KEPCO) and KAERI, as was demonstrated with the 2012 disclosures of the failures of KINS to disclose the falsification of reactor components safety certifications, sub-standard reactor parts, and bribery, which ultimately led to the forced shutdown of several NPPs to recertify their continued ability to safely operate (136). Further, problems arising from KEPCO’s construction of four reactors at the Barakah Nuclear Power Plant in the United Arab Emirates has raised fresh concerns over KINS’s ability to adequately oversee the commercial industry (137). Until

135 KINS’s had a staff of 546 scientific, technical and professional staff in 2018. 136 Green (2017/05/25) “South Korea's 'nuclear mafia'”; Nuclear Monitor, #8444649; https://www.wiseinternational.org/nuclear-monitor/844/south-koreas-nuclear-mafia 137 Kim (2019/04/22) “How greed and corruption blew up South Korea’s nuclear industry”; MIT Technology Review; https://www.technologyreview.com/s/613325/how-greed-and-corruption-blew-up-south-koreas-nuclear-industry/

79 NSSC successfully demonstrates that it is truly independent, it will remain in the second category of NNRAs.

1.7.3 Category 3 NNRAs

The remaining NNRAs occupy the final category since these NNRAs have insufficient legal authority, resources, and/or technical expertise to be a fully effective regulator.

Exemplifying this category is the Russian Federation’s federal supervisory body on ecological, technological, and nuclear issues, the Federal Environmental, Industrial and

Nuclear Supervision Service, Rostekhnadzor (Федеральная служба по экологическому,

технологическому и атомному надзору, Ростехнадзор). Formed (138) in 2004 by merging the former Federal Industrial Supervision Service and the Federal Nuclear

Supervision Service, Rostekhnadzor is charged with overseeing all non-military aspects of the use of nuclear materials and technologies in the Russian Federation. While

Rostekhnadzor, through its technical support organizations (139) has adequate technical expertise, based on the most recent publicly available IAEA IRRS review, it is under- resourced. At the request of the Russian government, in November 2013 the IAEA conducted a follow-up IRRS to review the framework for regulating safety of all nuclear facilities and activities in the Russian Federation, and the progress made since the original 2009 IRRS on improving the effectiveness of the regulatory functions

138 Rostekhnadzor’s enabling legislation is the Decree of the President of the Russian Federation No. 649 of 20.05.04, “Issues of Structure of Federal Executive Power Authorities.” 139 Rostekhnadzor (2019) “Technical support organizations”; http://en.gosnadzor.ru/structure/rostechnadzor/organizations/

80 implemented by Rostechnadzor. The IRRS recommended that the Russian Federation government “implement a financing mechanism which ensures adequate resources” for

Rostechnadzor, especially since “Rostechnadzor is providing support to regulatory bodies of emerging nations that are developing their nuclear infrastructure using Russian technology.” (140)

In addition, as demonstrated by its enabling legislation, Rostekhnadzor is limited its exercise of regulatory oversight. For instance, its website (141) specifies as part of its responsibilities that it can “observe, within its competence, of safety requirements in power industry”.

Examples of significantly under-resourced regulators include the Armenian Nuclear

Regulatory Authority (ANRA), the State Nuclear Regulatory Inspectorate of Ukraine

(SNRIU), and South Africa’s National Nuclear Regulator (NNR), all of which the IAEA judges to be under-funded and under-staffed for the duties they have (142). Each of these

140 RF2 Recommendation: The Government of the Russian Federation should authorize Rostechnadzor to assist foreign regulatory bodies of countries that are acquiring Russian nuclear technologies and provide Rostechnadzor with dedicated resources to organize these activities. IAEA (2014) “Integrated Regulatory Review Service (IRRS) Follow-Up Report to the Russian Federation”; http://en.gosnadzor.ru/international/IAEA_IRRS_Follow- up_Mission/OFFICIAL%20SUBMISSION%20REPORT%20IRRS%20RUSSIAN%20FEDERATION%20201 3.pdf 141 Rostekhnadzor (2019) “Basic Activities of Federal Environmental, Industrial and Nuclear Supervision Service”; http://en.gosnadzor.ru/activity/ 142 IAEA (2015) “Integrated Regulatory Review Service (IRRS) Mission to Armenia”; IAEA-NS-IRRS-2015/07; https://www.iaea.org/sites/default/files/documents/review-missions/irrs_armenia_mission_report.pdf IAEA (2010) “Integrated Regulatory Review Service (IRRS) Follow-up to Ukraine”; https://www.iaea.org/sites/default/files/documents/review-missions/irrs_mission_follow- up_to_ukraine_nov_2010_1.pdf IAEA (2016) “Integrated Regulatory Review Service (IRRS) Mission to the Republic of South Africa”; IAEA-NS- IRRS-2016/10; https://www.iaea.org/sites/default/files/documents/review- missions/irrs_south_africa_2016_mission_report_final.pdf

81 three NNRAs have entered into information and technical assistance agreements with the

USNRC.

There are a number of NNRAs embedded in the ministry that is responsible for the development and promotion of nuclear energy. Examples include the Netherlands’

Authority for Nuclear Safety and Radiation Protection (ANVS), which falls under the

Ministry of Infrastructure and the Environment (143); the Slovenian Nuclear Safety

Administration (SNSA), which is a part of the Ministry of the Agriculture and

Environment (MEA); Belarus’ Department for Nuclear and Radiation Safety

(Gosatomnadzor), which is under the Ministry of Emergencies; and, Belgium’s Federal

Agency for Nuclear Control (Federaal Agentschap voor Nucleaire Controle, FANC), which is under the Ministry of the Interior.

While it may not be the case (the IAEA found that the NNRAs for the Czech

Republic and France were both effective regulators (144)), there is at least an appearance that NNRAs in the third grouping could be constrained in being able to provide adequate and appropriate oversight. For instance, the 2007 IAEA IRRS mission that reviewed the

143 ANVS was created on January 1, 2015, with the merger of regulatory functions that had been fragmented between several ministries and organizations: the Nuclear Installations and Safety Programme Directorate of the Ministry of Economic Affairs; the Department for Nuclear Safety Security and Safeguards (Kernfysische dienst, KFD); the Emergency Preparedness and Response unit of the Ministry of Infrastructure and the Environment; and, the Radiation Protection Team of the Netherlands Enterprise Agency of the Ministry of Economic Affairs. 144 The Czech Republic’s State Office for Nuclear Safety (SÚJB) completed an IRRS mission in 2013 which found “that the Czech regulatory system for nuclear and radiation safety is robust and that the State Office for Nuclear Safety (SÚJB) is an effective and independent regulatory body.” “Report of the IRRS Mission to the Czech Republic Released,” http://www.sujb.cz/en/news/detail/clanek/report- of-the-irrs-mission-to-the-czech-republic-released/ A 2007 IRRS mission found that France’s L'Autorité de sûreté nucléaire (ASN) has, as one of its strengths, a “mature and transparent nuclear regulatory system.” “IAEA Safety Reviews and Appraisals in France,” http://www.french-nuclear-safety.fr/ASN/Professional- events/IAEA-Safety-Reviews-and-Appraisals-in-France2

82 Japanese national regulator, then the Nuclear and Industrial Safety Agency (NISA), found that “Japan has a comprehensive national legal and governmental framework for nuclear safety in place (145). However, the major finding of the 2012 report compiled by the Fukushima Nuclear Accident Independent Investigation Commission (NAIIC), which was commissioned by Japan’s National Diet subsequent to the Fukushima Dai-ichi accident, was that the accident was a “man-made disaster”:

The TEPCO Fukushima Nuclear Power Plant accident was the result of collusion between the government, the regulators and TEPCO, and the lack of governance by said parties. They effectively betrayed the nation’s right to be safe from nuclear accidents. Therefore, we conclude that the accident was clearly “manmade.” We believe that the root causes were the organizational and regulatory systems that supported faulty rationales for decisions and actions, rather than issues relating to the competency of any specific individual. (NAAIC, 16)

It should be noted that NNRAs that oversee a federalized, i.e., owned, either wholly or in majority, by the national government (146), nuclear energy industry, can be effective

(see Table 1-5, for a listing of NNRAs that oversee a nationally-owned nuclear energy industry). Nevertheless, there has been the emerging recognition that organizations that promote an activity find it virtually impossible to regulate effectively what it promotes, and that it is more appropriate to separate the promotional and regulatory duties into

145 The complete 2007 IRRS report (IAEA-NSNI-IRRS-2007/01) can be found on NISA’s website at http://www.nsr.go.jp/archive/nisa/genshiryoku/files/report.pdf 146 It should be noted that Canada’s Bruce Power and Ontario Power are majority-owned by state-owned corporations; and, the U.S.’s Tennessee Valley Authority (TVA) is a federally-owned corporation that operates seven reactors at three sites (Browns Ferry, Sequoyah, and Watts Bar).

83 distinct organizations (147). This recognition is among the reasons a number of NNRAs have been split from their parent organizations, so as to provide needed distance and to reduce conflicts of interest (Barnett and King, 2008). However, merely splitting the regulatory duties from the promoting government organization is insufficient unless there exist sufficient independence and authority for the regulator to address safety and security concerns.

Table 1-5: NNRAs that Oversee a Nuclear Energy Industry Owned, Either Wholly or in Majority, by the National Government

Argentina Nuclear Regulatory Authority (Autoridad Regulatoria Nuclear, ARN)

Armenia Armenian Nuclear Regulatory Authority (ANRA)

Bangladesh Bangladesh Atomic Energy Commission (BAEC)

Belarus Nuclear & Radiation Safety Department (within the

Emergencies Ministry)

Brazil National Nuclear Energy Commission (Comissão Nacional

de Energia Nuclear, CNEN)

147 A non-nuclear example of a U.S. federal agency that was originally charged with both promoting and regulating but was then split into separate promotional and regulatory entities would be the U.S. Department of the Interior’s Minerals Management Service (MMS). The MMS had three key responsibilities: (1) ensuring the balanced and responsible development of energy resources on the Outer Continental Shelf (OCS); (2) ensuring safe and environmentally responsible exploration and production and enforcing applicable rules and regulations; and, (3) ensuring a fair return to the taxpayer from offshore royalty and revenue collection and disbursement activities. In 2010, the MMS was split into two independent entities, the Bureau of Ocean Energy Management (BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE), in order to (i) separate resource management from safety oversight, (ii) ensure that robust environmental analyses are conducted, and (iii) strengthen the role of environmental reviews. Bureau of Ocean Energy Management, “The Reorganization of the Former MMS”, January 19, 2011, http://www.boem.gov/Reorganization/, accessed February 27, 2016

84 Table 1-5: NNRAs that Oversee a Nuclear Energy Industry Owned, Either Wholly or in Majority, by the National Government

Bulgaria Nuclear Regulatory Agency (NRA)

People’s Republic of National Nuclear Safety Administration (NNSA)

China

Czech Republic State Office for Nuclear Safety (Státní úřad pro jadernou

bezpečnost, SÚJB)

Finland Radiation and Nuclear Safety Authority (STUK)

France Nuclear Safety Authority (Autorite de Surete Nucleaire,

ASN)

Hungary Hungarian Atomic Energy Authority (Országos Atomenergia

Hivatal, HAEA)

India Atomic Energy Regulatory Board (AERB)

Iran Iran Nuclear Regulatory Authority (INRA)

Mexico National Commission on Nuclear Safety and Safeguards

(Comisión Nacional de Seguridad Nuclear y Salvaguardias,

CNSNS)

Netherlands Authority for Nuclear Safety and Radiation Protection

(Autoriteit Nucleaire Veiligheid en Stralingsbescherming,

ANVS)

85 Table 1-5: NNRAs that Oversee a Nuclear Energy Industry Owned, Either Wholly or in Majority, by the National Government

Pakistan Pakistan Nuclear Regulatory Authority (PNRA)

Romania National Commission for Nuclear Activities Control

(Comisia Nationala pentru Controlul Activitatilor Nucleare,

CNCAN)

Republic of (South) Korea Nuclear Safety and Security Commission (NSSC)

Russian Federation Federal Service for Ecological, Technological and Nuclear

Supervision (Федеральная служба по экологическому,

технологическому и атомному надзору, Rostekhnadzor)

Slovak Republic Nuclear Regulatory Authority (Úrad jadrového dozoru

Slovenskej republiky, UJDSR)

Slovenia Slovenian Nuclear Safety Administration (SNSA)

South Africa National Nuclear Regulator (NNR)

Sweden Swedish Radiation Safety Authority

(Strålsäkerhetsmyndigheten, SSM)

Ukraine State Nuclear Regulatory Inspectorate of Ukraine (SNRI)

United Arab Emirate Federal Authority of Nuclear Regulation (FANR)

Table 1-5: NNRAs that Oversee a Nuclear Energy Industry Owned, Either Wholly or in Majority,

by the National Government

86 1.8 Early Attempts at Nuclear Governance

Beginning as early as 1946, there have been several unsuccessful proposals, i.e., the

Acheson-Lilienthal Report and subsequent Baruch Plan; Eisenhower’s proposed

“uranium bank”; and, proposals for the multi-nationalization of the fuel cycle, enrichment and storage centers, and fuel banks, to place the control of the global development of nuclear energy under the auspices of the UN in order to prevent an international nuclear arms race (U.S. Department of State, 2018).

1.8.1 Acheson-Lilienthal Report and the Ba

The 1946 “Report on the International Control of Atomic Energy,” known as the

Acheson-Lilienthal Report after its lead authors, Dean Acheson, then Undersecretary of the U.S. Department of State, and David Lilienthal, then Chairman of the Tennessee

Valley Authority (TVA), was a study undertaken to determine which of two prevalent views at the time about the future control of nuclear sciences and technologies, and especially nuclear weapons, was the one that should be adopted as U.S. policy. On

June 14, 1946, Bernard Baruch, then U.S. Representative to the UNAEC, presented a modified version (“Baruch Plan”) of the proposals in the Acheson-Lilienthal report to the

UNAEC, proposing international control of nuclear materials and strict oversight of any associated research and development. However, the U.S.S.R. rejected this proposal.

1.8.2 Establishment of the IAEA

While Baruch’s plan failed to produce a true international authority to oversee the development of nuclear energy and radioactive materials for peaceful purposes, a significantly weaker institution – the International Atomic Energy Agency – was

87 established in 1954 to “promote safe, secure and peaceful nuclear technologies” globally.

However, President Eisenhower’s 1953 “Atoms for Peace” speech (148) included not just a proposal for an organization like the IAEA, but also for the development of an international “uranium bank” into which the U.S. and U.S.S.R. would “make joint contributions from their stockpiles of normal uranium and fissionable materials,” and which would “devise methods whereby this fissionable material would be allocated to serve the peaceful pursuits of mankind.” Unfortunately, Eisenhower’s “uranium bank” proposal, a variation on Baruch’s plan, which had been intended to support international arms control, was not established, mostly over concerns over sovereignty rights from those States that were attempting to close the nuclear gap (149).

In 1968, the landmark Treaty on the Non-Proliferation of Nuclear Weapons (Non-

Proliferation Treaty or NPT (150)), was opened for signature. The NPT’s objectives are to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy, and to further the goal of achieving nuclear disarmament and general and complete disarmament. The NPT is the only binding commitment in a multilateral treaty to the goal of nuclear disarmament, and 190 States are parties to it. With the 1970 ratification of the NPT, the IAEA’s mission expanded to include inspecting NPT-signatory States for proliferation violations

148 Eisenhower Presidential Library, Museum & Boyhood Home (2018) “Atoms for Peace”; https://eisenhower.archives.gov/research/online_documents/atoms_for_peace.html 149 Lavoy (2003) “The Enduring Effects of Atoms for Peace”; Arms Control Association; https://www.armscontrol.org/act/2003_12/Lavoy 150 On 11 May 1995, the Treaty was extended indefinitely. UN (2018) “Treaty on the Non-Proliferation of Nuclear Weapons (NPT)”; https://www.un.org/disarmament/wmd/nuclear/npt/

88 1.8.3 Subsequent Proposals

Another series of attempts to establish international control to ensure the peaceful uses of nuclear materials and technologies occurred in the 1970’s and 1980’s when a variety of proposals were advanced to make the nuclear fuel cycle more proliferation- resistant (151). Among the initiatives were modifications to the fuel cycle to limit access to nuclear materials; multilateral centers to provide fuel cycle services; multinational storage and reprocessing centers; international nuclear bank to guarantee the supply of fuel to NPT non-NWS that renounced national reprocessing or enrichment plants; and, international plutonium storage to implement Article XII. A.5 of the IAEA Statute.

However, each of these proposals were eventually abandoned due to factors that included political opposition, resource issues, mistrust, and technological limits (152).

While global agreement could not be reached on the value of nuclear fuel banks, there was movement on a regional scale. In 2017, the Russian Federation established the first fuel banks in Kazakhstan and Siberia. The Russian Federation also established the

International Uranium Enrichment Center (IUEC), jointly owned by Russia's Rosatom

(80-percent ownership), Kazakhstan, and Ukraine, with Armenia as a proposed future shareholder. The IUEC provides preferential services to its shareholders (153).

151 Miller (2017) “Why Nuclear Energy Programs Rarely Lead to Proliferation”; International Security; 42:2, 40-77 152 Tariq & Vovchok (2008) “Fuel for Thought”; IAEA Bulletin 49-2; p. 59-63 153 World Nuclear News (2017/06/13) “IAEA fuel 'bank' on course”; http://www.world-nuclear- news.org/Articles/IAEA-fuel-bank-on-course

89 The above attempts to mitigate nuclear weapons proliferation relates to the expansion of nuclear energy because of nuclear latency – the ability to transition from enriching (154) uranium from fuel to weapons, and the ability to reprocess (155) used fuel to retrieve fissile materials like plutonium. All nuclear weapon States possess the capability to enrich and reprocess fuel; presently, fourteen States operate enrichment and/or reprocessing facilities (156); and, due to the dual-use capabilities that lead to the establishment of the

Nuclear Suppliers Group, the remaining seventeen States that operate nuclear power

154 Natural uranium is composed of several isotopes, with the fertile 238U being the most prevalent (99.284%) while the fissile 235U is about 0.711% of its mass. Enriching the amount of 235U increases the power and efficiency of the fuel. Most commercial light-water reactors utilize fuels enriched to 3-5% levels, while RTRs have enrichment concentrations up to 20%, the maximum enrichment level to be considered LOW ENRICHMENT URANIUM (LEU). HIGHLY ENRICHED URANIUM (HEU) has a 20% or greater concentration of 235U; most military reactors use HEU fuel.

FERTILE materials, while not fissionable by thermal neutrons, can be converted into a fissile material by neutron absorption and subsequent nuclear reactions, e.g., 238U converts to plutonium-239 (239Pu).

FISSILE materials are capable of sustaining a nuclear fission chain reaction.

WEAPONS-GRADE fissile materials include 235U at 85% or greater enrichment levels, and 239Pu. 155 Reprocessing used (spent) nuclear fuel involves chemically extracting plutonium, originally for nuclear weapons; however, the Pu can be blended into natural uranium to create mixed-oxide (MOX) fuel. While expensive, MOX is an effective way to utilize weapons-grade materials, as was demonstrated in the so-called MEGATONS TO MEGAWATTS Program (“Agreement between the Government of the Russian Federation and the Government of the United States of America Concerning the Disposition of Highly-Enriched Uranium Extracted from Nuclear Weapons”), which was in place 1993-2013. Five-hundred metric tons of Russian weapons-grade HEU (equivalent to 20,008 nuclear warheads) were converted in Russia to nearly 15,000 tonnes tons of LEU nuclear fuel and sold to the U.S. commercial nuclear industry. It is estimated that as much as 10% of the electricity produced by U.S. NPPs during this period came from former nuclear weapons. WNA (2017) “Military Warheads as a Source of Nuclear Fuel”; http://www.world-nuclear.org/information- library/nuclear-fuel-cycle/uranium-resources/military-warheads-as-a-source-of-nuclear-fuel.aspx 156 States with operating enrichment facilities include: Argentina, Brazil, PRC, France†, Germany, India, Iran, Japan, the Netherlands, DPRK, Pakistan, Russia, U.K., and U.S. Australia is developing enrichment capabilities, while South Africa no longer operates its facility. Israel is suspected of having enrichment capabilities. † Belgium, Iran, Italy, and Spain each have about a 10% investment share in the French Eurodif enrichment plant. WNA (2018) Uranium Enrichment; http://www.world-nuclear.org/information-library/nuclear-fuel- cycle/conversion-enrichment-and-fabrication/uranium-enrichment.aspx

90 plants, as well as potentially dozens of other States, could gain the capability to develop their own nuclear weapons (157), (158). So why don’t they?

1.8.4 Proliferation Fears

In 1945, there was one nuclear weapon State (NWS), the U.S. In 1949, the U.S.S.R. became the second NWS, then the U.K. in 1952, followed by France in 1960, and the

PRC in 1964. Not coincidentally, these five States are also the permanent members of the UN Security Council, and the only States acknowledged by the NPT as being allowed to possess nuclear weapons. While additional proliferation was not considered an immediate concern in the early-1960’s (159), by the mid-1970’s, even with the NPT in place, there was a recognition that the nuclear-weapons-capable States had increased to over two dozen (160), and that the numbers of nuclear latent States – those possessing the

157 The ability to subvert nominally civilian nuclear energy programs into supplying the necessary materials for nuclear weapons was illustrated by the French nuclear energy program in the post-WWII period. The Provisional Government of the French Republic (GPRF) created the Commissariat à l'Énergie Atomique (CEA) in 1945 to, among other things, conduct fundamental and applied research into the design of nuclear reactors and weapons. In conjunction with the secret Committee for the Military Applications of Atomic Energy, which was empaneled in 1956, the French used its Zoé reactor to produce plutonium for its nuclear weapons program (originally known as Force de Frappe – “strike force”), and tested its first nuclear weapon in 1960. The first French commercial NPP began operation in 1962. 158 Examples of nuclear weapons programs that were covered by the fig leaf of a nuclear energy program would include the 1945 establishment of India’s Tata Institute of Fundamental Research; the 1948 establishment of the South African Atomic Energy Corporation; the 1951 agreement between the U.S.S.R. and China that led to cooperation on nuclear weapons development; the 1956 establishment of the Pakistan Atomic Energy Commission; the 1961 construction of a plutonium-separation plant adjacent to Israel’s French-built Dimona research reactor; and, the nuclear research programs in the 1970’s and 1980’s of Argentina and Brazil. 159 A 1963 National Intelligence Estimate (NIE) concluded that “there will not be a widespread proliferation of nuclear weapons over the next 10 years” but acknowledged the capability of various States, including Israel, China, Sweden, India, West Germany, and Japan, to be able to produce nuclear weapons within that timeframe. NIE 4-63, “Likelihood and Consequences of a Proliferation of Nuclear Weapons Systems,” June 23, 1963 160 Special National Intelligence Estimate, “Prospects for Further Proliferation of Nuclear Weapons,” August 23, 1974

91 means to rapidly produce nuclear weapons, without having actually yet done so – would continue to climb (161).

While the 1974 SNEI was correct about the expanding capability of States to develop nuclear weapons, either indigenously or with external aid (162), the concerns over rampant proliferation fortunately were not realized. Since the NPT entered into force, there have only been four States – India, South Africa (which dismantled its nuclear weapons stockpile in 1989), Pakistan, and DPRK (163) – that have publicly declared their acquisition of such weapons, and each of those did so due to some pressing national security concerns (164) (see Figure 1-3, “Estimated Global Nuclear Warhead Inventories”).

Absent some actual or perceived near-term need to bolster national security or prestige, it

161 Fuhrmann & Tkach (2015) “Almost Nuclear: Introducing the Nuclear Latency Dataset”; Conflict Management and Peace Science, 32(4), 443-461. 162 It is suspected that Israel and South Africa cooperated in the 1970’s on developing nuclear weapons, including a 1979 test codenamed Vela. In the early 2000 timeframe, A.Q. Khan, head of Pakistan's nuclear weapons program, confessed to his key role in proliferation activities with Libya, Iran, and North Korea. 163 While India, Israel and Pakistan are members of the IAEA, they have not ratified nor acceded to the NPT; and, all three are either acknowledged or suspected as possessing nuclear weapons. DPRK was originally a member of IAEA and had ratified the NPT, but has withdrawn from both the IAEA and the NPT. 164 South Africa developed its nuclear weapons starting in 1971 under the guise of using the devices for mining, basing its rationale on the USAEC’s “peaceful nuclear explosion” concept that was developed under the “Atoms for Peace” initiative; however, the program became strictly for military uses as early as 1974. Both India and Pakistan developed – and maintain – their respective nuclear arsenals as a deterrence against the other. Since the 1947 partition and creation of the Republic of India and the Islamic Republic of Pakistan, the two States have been involved in four wars, and remain at a high level of military readiness. This ongoing conflict is perhaps the most probable flashpoint for a regional nuclear war as of the writing of this dissertation. The DPRK remains officially at war with the ROK, and developed its nuclear weapons to demonstrate its great power status. While there remains a strong probability that the DPRK could use its nuclear weapons in a military conflict, at present I believe it is more probable that these weapons are more a bargaining chip than an immediate threat.

92 is unlikely that many more States will opt to become a NWS (165), (166). However, this present assumption does not obviate the need for the continuation of the IAEA’s safeguards audits (167) of facilities and materials that a member State has declared, nor the need for export controls developed and updated by the NSG.

A key component of IAEA’s activities for ensuring peaceful use of nuclear materials is its circumscribed ability to perform safeguards audits of declared facilities for NPT violations. However, since the IAEA lacks independent legal authority to either enforce safe and secure operations of civilian nuclear facilities or to prevent the occurrence of proliferation activities by its member States, if IAEA inspectors find that illicit activities are taking place, the IAEA must present the evidence of such illicit activities to the UN’s

Security Council, which may, or may not, elect to take some action against the offending

State.

165 Three former Soviet Republics – Belarus, Kazakhstan, and Ukraine – inherited possession of nuclear weapons when the U.S.S.R. dissolved in 1991. Belarus had 81 nuclear weapons, and transferred all to Russia by 1996. Kazakhstan had 1,400 nuclear weapons, and transferred all to Russia by 1995. Ukraine had approximately 5,000 nuclear weapons (making its arsenal the third-largest in the world), but transferred all to Russia by 1996 with the condition that its borders were respected, per the 1994 BUDAPEST MEMORANDUM ON SECURITY ASSURANCES., which provided security assurances against threats or use of force against the territorial integrity or political independence of Ukraine, Belarus and Kazakhstan, and was signed by the Russian Federation, the U.S., and the UK (China and France gave similar assurances in separate documents). However, it was the failure of the signatories to prevent the annexation of the Ukraine’s Crimea region by the Russian Federation in 2014 which makes future non-proliferation efforts problematic. 166 Epstein (1977) “Why States Go – And Don't Go – Nuclear”; The Annals of the American Academy of Political and Social Science; Vol. 430, Nuclear Proliferation: Prospects, Problems, and Proposals, pp. 16-28 167 “…the IAEA’s safeguards system functions as a confidence-building measure, an early warning mechanism, and the trigger that sets in motion other responses by the international community if and when the need arises.” IAEA (2018) “IAEA Safeguards Overview”; https://www.iaea.org/publications/factsheets/iaea-safeguards- overview

93 Fifty-seven of the NPT signatory States have declared (168) nuclear activities at over a thousand facilities and other locations, and these are subject to regular audits by the

IAEA. Of note, India, Pakistan, and Israel, on the basis of item-specific agreements with the IAEA, also allow certain facilities to be audited.

It bears repeating that neither the IAEA nor the NSG possess the authority envisioned by the Baruch Plan to provide true oversight and control of proliferation activities. As such, both the IAEA and NSG rely on the goodwill of their member States to follow the guidance each organization develops.

Figure 1-3: Estimated Global Nuclear Warhead Inventories

1.9 Options for Developing NNRAs

So how does a State that wishes to add nuclear to their energy portfolio, or an existing

NNRA that wishes to improve its capabilities, go about developing the necessary

168 IAEA (2018) “IAEA Safeguards Overview: Comprehensive Safeguards Agreements and Additional Protocols”; https://www.iaea.org/publications/factsheets/iaea-safeguards-overview

94 governance infrastructure and enhancing their corresponding technical capabilities?

Embarking and Developing States have several options in creating and enhancing an

NNRA – they can either go it alone, receive assistance from another NNRA, work with

IAEA, work with regional or thematic cooperative regulatory networks, or contract out the development.

1.9.1 Option 1 – Indigenously Created

The first option is that the State may choose to rely on indigenous efforts and create a nuclear energy program, including an NNRA, without any outside assistance. While the

States that initially developed nuclear energy technologies in the immediate post-World

War II period, e.g., U.S., Soviet Union, U.K., Canada, and France, generally used this method (169), such an option today, especially for a Developing State, would be cost- prohibitive.

1.9.2 Option 2 – Assistance from Another NNRA

The second option, which most States have chosen over the past fifty years, involves relying on technology transfers from nuclear-supplier States coupled with outside assistance in developing their legal and regulatory infrastructure, usually from the regulators in the States from which the technology was acquired, or from another State with a mature nuclear program. Typically, the Embarking State approaches either the nuclear vendor’s host State’s NNRA, or another State’s NNRA that oversees the same

169 It should be noted that, by and large, most States have cooperated in developing solutions for challenges each State faced, either through consultation, joint efforts to resolve the challenge, or through an adaptation of another’s solution.

95 type of NPP the Embarking State is interested in acquiring and thus already has regulatory expertise with that nuclear technology, with a request for assistance. For instance, Saudi Arabia, in support of the development of its NNRA, the Saudi Arabian

Atomic Regulatory Authority (SAARA), formed a partnership with the Finnish NNRA, the Radiation and Nuclear Safety Authority (Säteilyturvakeskus, STUK), and with the

ROK’s Nuclear Safety and Security Commission (NSSC), to promote cooperation in

“regulating nuclear safety, safeguards and physical protection, radiation protection and relevant research, as well as development in a manner to serve atomic energy programs in the Kingdom of Saudi Arabia." (Nuclear Engineering International, 2014).

1.9.3 Option 3 – Work with IAEA

A third option is that a Developing, but not yet officially Embarking, State, which is just beginning to consider nuclear energy and thus does not yet have a strong grasp of what is needed moving forward, could work with an international organization such as the IAEA to develop the basis for its national nuclear regulatory infrastructure. However, as discussed above, the IAEA primarily acts as an information clearinghouse through its

International Regulatory Network (RegNet) portal

(http://gnssn.iaea.org/regnet/default.aspx), which is intended to facilitate information exchanges between the NNRAs in Developing and Embarking States and the NNRAs in

States with more mature nuclear energy programs.

1.9.4 Regional Cooperative Nuclear Regulatory Networks

A variation on this third option is that the Embarking State could work with a regional or a thematic cooperative nuclear regulatory network in order to develop a new,

96 or improve its existing, regulatory infrastructure. Regional cooperative nuclear regulatory networks are groupings of (typically) geographically-near NNRAs who meet to share and analyze nuclear existing and new information, knowledge and operating experience on safety and security issues. Regional networks include the Western

European Nuclear Regulators Association, the European Nuclear Safety Regulators

Group, the Forum of Nuclear Regulatory Bodies in Africa, the Arab Network of Nuclear

Regulators, the Asian Nuclear Safety Network, the Ibero-American Forum of

Radiological and Nuclear Regulatory Agencies, and the Forum for Nuclear Cooperation in Asia.

The Western European Nuclear Regulators Association (WENRA (170)) was created in

1999 as a network of the European Union’s (EU) NNRAs, and other interested European countries which have been granted observer status. WENRA seeks to: develop a

European approach to nuclear safety; provide an independent capability to examine nuclear safety in applicant countries; to be a network of chief nuclear safety regulators in

Europe; and to a forum to exchange experience and discuss significant safety issues.

The European Nuclear Safety Regulators Group (ENSREG (171)) was created in 2007 by the European Commission as an independent, authoritative expert body that

170 WENRA’s membership includes the NNRAs of Belgium, Bulgaria, Czech Republic, Finland, France, Germany, Hungary, Italy, Lithuania, Netherlands, Romania, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Ukraine, and the U.K. WENRA observers include the NNRAs of Armenia, Austria, Belarus, Canada, Cyprus, Denmark, Ireland, Japan, Luxemburg, Norway, Poland, Russian Federation, and Serbia. (Bolded States have nuclear energy programs.) WENRA, http://www.wenra.org/ 171 ENSREG is composed of senior officials from the national nuclear safety, radioactive waste safety or radiation protection regulatory authorities and senior civil servants with competence in these fields from all 27 Member States in the European Union and representatives of the European Commission. ENSREG, http://www.ensreg.eu/

97 establishes conditions for continuous improvement, and to reach a common understanding between its members in the areas of nuclear safety and radioactive waste management.

The Forum of Nuclear Regulatory Bodies in Africa (FNRBA (172)) was founded in

2009 to facilitate the exchange of regulatory experiences and practices among African nuclear regulatory bodies in order to enhance, strengthen and harmonize the radiation protection, nuclear safety and security regulatory infrastructure and framework among its members.

The Arab Network of Nuclear Regulators (ANNuR (173)) was founded in 2010 as a sub-organization of the Arab Atomic Energy Agency (AAEA). ANNuR’s mission is to: coordinate peaceful applications of atomic energy, sponsor and coordinate atomic energy research projects, assist in human resources development and knowledge transfer regarding nuclear sciences and technologies, and develop unified Arab regulations for radiation protection, nuclear safety and security and safe handling of radioactive materials.

172 FNRBA has 28 member States, including Algeria, Angola, Benin, Botswana, Burkina Faso, Cameroon, Chad, Cote D'Ivoire, DR Congo, Egypt, Ethiopia, Gabon, Ghana, Kenya, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Namibia, Niger, Nigeria, Senegal, Seychelles, Sierra Leone, South Africa, Sudan, Tanzania, Tunisia, Uganda, and Zimbabwe. Forum of Nuclear Regulatory Bodies in Africa, http://gnssn.iaea.org/Pages/FNRBA.aspx 173 ANNuR has 13 member countries, including Algeria, Bahrain, Comoros, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, UAE, and Yemen. (Underlined States are adding nuclear energy programs.) Arab Network of Nuclear Regulators, http://gnssn.iaea.org/Pages/ANNuR.aspx

98 The Asian Nuclear Safety Network (ANSN (174)) was founded in 2002 to: pool, analyze and share nuclear safety information, knowledge and practical experience; to facilitate sustainable regional cooperation; to create human networks and cyber communities; and, to be a forum for broader safety strategy among countries in the region.

The Ibero-American Forum of Radiological and Nuclear Regulatory Agencies

(FORO (175)) was founded in 1997 as an association of nuclear and radiation safety regulatory authorities of the Spanish- and Portuguese-speaking American countries to promote radiological and nuclear safety and security in the region.

The Forum for Nuclear Cooperation in Asia (FNCA (176)) was founded in 1990 as a ministerial-level framework for promoting international cooperation on joint research into the peaceful uses of nuclear technologies. FNCA’s member States exchange views and information on: radiation utilization development (industrial utilization/environmental utilization, and healthcare utilization); research reactor

174 ANSN has 11 member States, including Bangladesh, China, Indonesia, Japan, Kazakhstan, Republic of Korea, Malaysia, the Philippines, Singapore, Thailand, and Vietnam; four supporting countries, including Australia, France, Germany and U.S.; and, Pakistan is an associate. (Bolded States have existing nuclear energy programs.) Asian Nuclear Safety Network, https://ansn.iaea.org/default.aspx 175 FORO’s membership includes the radiological and nuclear safety regulatory authorities of Argentina, Brazil, Chile, Columbia, Cuba, Mexico, Peru, Spain, and Uruguay. (Bolded States have existing nuclear energy programs.) Ibero-American Forum of Radiological and Nuclear Regulatory Agencies, http://www.foroiberam.org/ 176 FNCA’s membership includes 12 States – Australia, Bangladesh, People’s Republic of China, Indonesia, Japan, Kazakhstan, Republic of Korea, Malaysia, Mongolia, the Philippines, Thailand, and Vietnam. (Bolded States have existing nuclear energy programs.) Forum for Nuclear Cooperation in Asia, http://www.fnca.mext.go.jp/english/

99 utilization development; nuclear safety strengthening; and, nuclear infrastructure strengthening.

1.9.5 Thematic Cooperative Nuclear Regulatory Networks

Thematic regulatory networks are groupings of NNRAs whose oversight responsibilities include reactor type from a specific vendor, i.e., CANDU or VVER, or who are engaged in new construction, i.e., MDEP, and who meet to share and analyze nuclear existing and new information, knowledge and operating experience on safety and security issues on these issues.

Thematic networks include the CANDU Senior Regulators Forum, the Framatome

Regulators Association, the WWER Cooperation Forum, and the Multinational Design

Evaluation Program.

The CANDU Senior Regulators Forum (177) was established in the mid-1990’s for

States operating CANDU reactors, in recognition that these designs have unique features that give rise to safety-relevant, operational and regulatory issues which require a specific mechanism and forum for the exchange of relevant information.

The Framatome Regulators Association (FRAREG (178)) was established in 2000 for

States operating reactors supplied by the vendor Framatome.

177 CSRG members include the NNRAs of Argentina, Canada, People’s Republic of China, India, Republic of Korea, Pakistan, and Romania. (Bolded States have existing nuclear energy programs.) Forum for Senior Regulators of CANDU Reactors, http://gnssn.iaea.org/regnet/Pages/CANDU.aspx 178 FRAREG members include the NNRAs of South Africa, Belgium, People's Republic of China, Republic of Korea, and France. (Bolded States have existing nuclear energy programs.) Originally the Franco-Américaine de Constructions Atomiques, Framatome was founded in 1958 as a consortium by the nuclear vendors Westinghouse (U.S.), Schneider Group (France), Empain (Belgium), and Merlin Gérin (France), to license Westinghouse's pressurized water reactor (PWR) technology. Framatome merged in 2001 with

100 The WWER Cooperation Forum (179), officially the Forum of the State Nuclear Safety

Authorities of the Countries Operating WWER [VVER] Type Reactors, was established in 1993 to foster enhancement of the nuclear safety and radiation protection through utilization of collective experience, information exchange and consolidation of efforts of the national nuclear safety authorities to study safety problems and improve regulatory policies and practices.

The Multinational Design Evaluation Program (MDEP (180) was established in 2006 as a multinational initiative to develop innovative approaches to leverage the resources and knowledge of the NNRAs who are currently or will be tasked with the review of new reactor power plant designs.

1.9.6 Option 4 – Contract the Development

A fourth option is that a Developing State could contract with a commercial firm to help develop a blueprint that the State would follow in developing its NNRA and nuclear energy industry. For instance, the U.S. firm Lightbridge was contracted by the Gulf

Cooperation Council (GCC (181)) to perform a regional nuclear infrastructure system study

Siemens, Cogema, and Technicatome to create Areva, a French multinational group specializing in nuclear and renewable energy projects. Areva’s largest shareholder is the French government agency Commissariat à l'énergie atomique et aux énergies alternatives (CEA), which owns 68.88-percent. 179 WWER Cooperation Forum members include the NNRAs of Armenia, Bulgaria, Czech Republic, PRC, Finland, Hungary, India, Iran, Russia, Slovakia, and Ukraine. Representatives of Germany, Belarus, and the IAEA take part in the Forum as observers. (Bolded States have existing nuclear energy programs.) WWER Regulators’ Forum, http://gnssn.iaea.org/regnet/Pages/WWER-Forum.aspx 180 MDEP members include the NNRAs of Canada, PRC, Finland, France, India, Japan, ROK, Russian Federation, Republic of South Africa, Sweden, U.K., and U.S. Associate MDEP members include NNRAs of Turkey and the United Arab Emirates. The IAEA serves as the MDEP Secretariat. Multinational Design Evaluation Programme, http://www.oecd-nea.org/mdep/ 181 GCC members include Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates.

101 for the development of civil nuclear power programs for electricity generation and water desalination in the GCC Persian Gulf States, including the development of a joint regional Nuclear Power Plant. Lightbridge was also contracted by the Vietnam Agency for Radiation and Nuclear Safety (VARANS) to develop the administrative, legal and regulatory infrastructure required to support Vietnam’s nuclear power program

(Lightbridge, 2018).

1.10 Nuclear Threats

Because nuclear materials are dual-use, there is another need for appropriate oversight – the actual threat that these materials can be diverted from peaceful, commercial uses to military/inimical uses.

There are two major categories of nuclear threats – military/inimical uses and unintentional harmful incidents arising from natural- or man-made causes. The existential threat arising from military uses (182) became actual on July 16, 1945, when the first nuclear weapon, code named “Trinity” (183), was detonated and ushered in an age that today encompasses a destruction spectrum that ranges from localized “dirty bombs”, i.e., conventional explosives with radioactive materials added, up to global “mutual assured destruction.” Non-militaristic man-made nuclear threats range in scale from limited scope, i.e., accidental over-exposures (184) of an individual or a small group, usually

182 Chapter Two will discuss the historical aspects of the military uses of nuclear sciences and associated technologies as it relates to the development of civilian uses. 183 There have been approximately 2,475 nuclear weapons exploded by at least eight countries since the Trinity test, including some 525 atmospheric, underwater, and space-based tests. 184 Intentional over-exposures will be considered, for the purposes of this dissertation, as an inimical act and as such will not specifically addressed other than the need for security oversight by the NNRA.

102 caused by misadministration of nuclear medicine or inappropriate disposal of medical or industrial radioactive materials, up to regional impacts that could impact millions of people and thousands of square miles, i.e., accidents involving NPPs.

To date the commercial nuclear energy industry has experienced only two major

INES Level 7 accidents, and only three INES Level 5 accidents with wider consequences, which are described below. Appropriate oversight of the commercial application of nuclear technologies and materials, which includes the inculcation of a safety-first culture and strict adherence to procedures, has been demonstrated to be capable of preventing most accidents, and mitigating the consequences of those that do occur (185).

However, there is also the widespread concern that the lack of adequate and independent regulatory oversight, which is needed to prevent or mitigate accidents that could be caused by, as one example, deficiencies in operators’ maintaining continuous careful attention to detail necessary to safely and securely utilize nuclear technologies, could lead to accidents with potentially significant consequences (186). Examples of some of the more severe accidents, as defined by the International Atomic Energy Agency’s

185 INPO (2013) “Traits of a Healthy Nuclear Safety Culture”; INPO 12-012, Revision 1. April 2013. http://nuclearsafety.info/wp-content/uploads/2010/07/Traits-of-aHealthy-Nuclear-Safety-Culture-INPO-12-012- rev.1-Apr2013.pdf. 186 Cooper (2012) “Nuclear safety and affordable reactors: Can we have both?”; Bulletin of the Atomic Scientists; p. 68–72

103 (IAEA) seven-level International Nuclear and Radiological Event Scale (INES) (187), (188)

(see Figure 1-4), are listed in Table 1-6:

Figure 1-4: IAEA International Nuclear Events Scale Source: IAEA (2029) “International

Nuclear and Radiological Event Scale (INES)”;

https://www.iaea.org/resources/databases/international-nuclear-and-radiological-event-scale

187 “The International Nuclear and Radiological Event Scale is a worldwide tool for communicating to the public in an open and consistent way the safety significance of nuclear and radiological events. . . . The scale is only intended for use in civil applications and only relates to the safety aspects of an event.” Each subsequent level is an order of magnitude increase in potential consequences. IAEA, “The INES Scale,” version 5.2.5885, https://www-news.iaea.org/InesScale.aspx 188 Although the INES listing of accidents contains non-commercial facilities that were used for military-related purposes, they are included because many States co-mingle their weapons-related research and development programs with their commercial applications. In addition, the INES includes accidents and incidents that involve non-energy uses, such as medical and industrial incidents.

104 Table 1-6: Examples IAEA International Nuclear and Radiological Event Scale

Accidents

Source: IAEA (2029) “International Nuclear and Radiological Event Scale (INES)”;

https://www.iaea.org/resources/databases/international-nuclear-and-radiological-event-scale

Level 7 As discussed in Chapter 2, there have been two Level 7 major accidents, the Chernobyl disaster in 1986, and the 2011 Fukushima major accident Dai-ichi nuclear disaster.

Level 6 There has been one Level 6 serious accident to date. In 1957, the Mayak Production Association (Производственное объединение), serious accident was a plutonium production site for nuclear weapons and a nuclear fuel reprocessing plant located near the town of Kyshtym, U.S.S.R. (now Russian Federation). A storage tank containing between 70- and 80-tons of liquid radioactive waste overheated and exploded, releasing an estimated 800 petabecquerel (PBq) (189) of radioactivity into the environment, which resulted in the long-term contamination of an area – now known as the East-Ural Radioactive Trace (EURT) – of about 20,000 square kilometers.

Level 5 There have been several Level 5 accidents with wide area consequences. Three examples include the 1957 fire in the UK’s accidents with plutonium-production Windscale Pile 1 reactor which resulted in the wider release of an estimated 740×1012 Bq (TBq) of iodine-131 consequences contamination over large sections of the UK and Europe; the 1969 partial meltdown accident at the Lucens heavy-water moderated,

189 Radioactivity is measured in Becquerel, with one becquerel being defined as the activity of a quantity of radioactive material in which one nucleus decays (disintegrates) per second. For comparison, the roughly 0.0169 grams of potassium-40 in a typical human body produces approximately 4,400 disintegrations per second or 4.4 kBq of activity, while the nuclear weapon exploded over Hiroshima is estimated to have produced 8×1024 Bq (8,000,000,000 PBq).

105 Table 1-6: Examples IAEA International Nuclear and Radiological Event Scale

Accidents

Source: IAEA (2029) “International Nuclear and Radiological Event Scale (INES)”;

https://www.iaea.org/resources/databases/international-nuclear-and-radiological-event-scale

carbon dioxide gas-cooled test reactor in Switzerland, which was caused by combinations of equipment failures, design flaws, and/or operator errors; and, the 1979 partial meltdown accident at the Three Mile Island Unit 2 (TMI-2) commercial light-water reactor (discussed in Chapter 2).

Table 1-6: Examples IAEA International Nuclear and Radiological Event Scale Accidents

A large number of level 4 and lower INES Levels accidents and events, with lesser on- and off-site consequences, have also occurred (190), most of which were the result of medical misadministration or inappropriate disposal of medical and industrial radioactive materials. One egregious example of this occurred in 1987 in Goiânia, Brazil, when a 40-

TBq cesium-137 encapsulated radioisotope source was stolen from an abandoned hospital and subsequently sold to a scrapyard. The scrapyard punctured the capsule, which exposed a blue light (191), and the owner of the scrapyard invited friends and family to

190 See IAEA’s Nuclear Events Web-based System (NEWS, https://www-news.iaea.org/) for additional information related to nuclear or radiological events provided by the 74 Nations that participate in INES. 191 The glow was most likely Cherenkov radiation, similar to that seen emitted from underwater nuclear reactors, which results when a charged particle passes through a medium at a speed greater than the velocity of light in that medium. It is named for Soviet physicist Pavel Cherenkov, who shared the 1958 Nobel Prize in Physics for its discovery.

106 view the strange glowing substance over the next three days. Ultimately, four individuals died from radiation exposure, and about 250 people were contaminated (192).

In addition to potential accidents caused by inadequate design, construction, operation, and/or maintenance of the NPP, there could be accidents caused by extraordinary natural events (193); unintentional external events (194); and, intentional insider sabotage and/or external attack (195).

There is every reason to believe that accidents and events will continue to occur in the future since one can never entirely prevent all possible incidents. However, as demonstrated by the Windscale accident, which was significantly mitigated by the installation of filters that were initially described as Cockcroft's Folly (196), it is possible to

192 IAEA (1988) “The Radiological accident in Goiânia”; Vienna: International Atomic Energy Agency. ISBN 92-0- 129088-8. 193 Examples of extraordinary natural events would include extreme meteorological conditions, e.g., too hot or too cold, flooding, drought, snow, hail, icing, hurricanes/typhoons, tornados/waterspouts or other extreme wind events, sandstorms, lightening; volcanism; landslides/avalanches, earthquakes, forest- and/or range-fires. 194 Examples of unintentional external events would include aircraft crashes, off-site explosions, off-site releases of toxic or hazardous gases or liquids, off-site electromagnetic interference, unintended damage to off-site power supplies or cooling sources. 195 It should be noted that the impacts from unintentional external events can be mistaken initially for an attack by external foes; however, ensuring the facility is placed in a safe condition is the normal response to either. IAEA (2003) “Extreme External Events in the Design and Assessment of Nuclear Power Plants”; IAEA- TECDOC-1341 IAEA (2006) “Advanced Nuclear Plant Design Options to Cope with External Events”; IAEA-TECDOC-1487 196 Terence Price, a physicist who was involved in building Windscale, was the first to raise safety concerns related to flaws in the design. While his concerns were initially ignored as being too difficult to resolve, Sir John Cockcroft, then Director of the UK’s Atomic Energy Research Establishment (AERE), acted on Price’s warnings when he learned about them. Cockcroft insisted on having high-performance filters installed in the Windscale units’ discharge chimney stacks to minimize discharges of radioactive materials in the event of an accident such as Price cautioned about, even though the addition of these filters increased the cost of building the discharge stacks considerably. What was initially derided as Cockcroft's Folly instead significantly reduced the amounts of contamination that were released into the environment during the 1957 accident. BBC, “Windscale Piles: Cockcroft's Follies avoided nuclear disaster”; 4 November 2014 http://www.bbc.com/news/uk-england-cumbria-29803990

107 institute preemptive measures that can minimize the occurrence of foreseeable incidents and could mitigate the possible consequences of those that do occur.

While there have been a large number of events with non-trivial consequences that were, for the most part, the result of negligence in the medical or industrial uses of nuclear technologies, the most significant actual and potential consequences have occurred in the energy sector, mostly due to the comparatively large amounts of radioactive materials needed for a nuclear reactor. As such, this dissertation focuses on the regulation and oversight of nuclear energy.

Based on the potential for significant consequences from nuclear energy related accidents and incidents, such as the higher-level INES events described above, policymakers and the public should demand assurances that the NPP owner/operator will put into place, and adhere to, policies and procedures that will minimize and mitigate the impacts to the public and environment arising from reasonably foreseeable challenges to the safety and security of the NPP during all phases of its life, starting at design, through construction, during operation, and while decommissioning, before allowing the addition of nuclear to the nation’s energy sector.

Prior accidents and events, as well as the potential consequences of future incidents, demonstrates the need for robust, independent, and ongoing oversight of nuclear facilities and materials to ensure adequate protection of public health, protection of the environment, and to facilitate the safe, secure, and beneficial uses of radioactive materials. If this oversight does not occur, especially in States that wish to add nuclear energy to their electrical portfolio, then future lapses could have consequences that could harm or kill thousands.

108 Absent appropriate independent oversight from a regulator with the required technical expertise to develop the minimum necessary set of safety and security requirements, and appropriate legal authority to enforce adherence to these requirements, no such guarantee of safety can exist. Unfortunately, a validation of this assertion is the regulatory failure that contributed to the Fukushima Dai-ichi accident, as discussed below. Moreover, the converse – that an independent overseer can step in early enough to prevent or mitigate failures of the owner/operator from negatively impacting the public and environment – can also be demonstrated, as was the case of the “near-miss” from the 2002 corrosion of the reactor vessel head at the Davis-Besse plant in the U.S., as discussed below.

1.11 Impact of Past Nuclear Accidents

Even for Developed States with existing nuclear energy programs, the impact of significant nuclear accidents, such as the 1979 Three Mile Island Unit 2 (TMI-2) partial meltdown, the 1986 Chernobyl Unit 4 disaster, and the 2011 Fukushima Dai-ichi Units 1-

4 accident following the Great East Japan Earthquake and subsequent tsunami, cannot be minimized. Following each of these accidents, NNRAs and the nuclear industry undertook various actions to mitigate future re-occurrences, and the subsequent consequences.

1.11.1 The Response to the 1979 TMI-2 Accident

The response to the Three Mile Island Unit 2 (TMI-2) accident was both rapid and significant. The USNRC instituted additional regulatory requirements and increased its oversight of licensees. The U.S. nuclear power industry established the Institute of

Nuclear Power Operations, as described earlier. In addition, there were multiple

109 investigations as to the underlying root causes and lessons-learned from the TMI-2 accident, including the “Report of the President's Commission on the Accident at Three

Mile Island: The Need for Change: The Legacy of TMI” (Kemeny Commission, 1979), which recommended, among other actions, a restructuring of the USNRC and fundamental changes to the way that day-to-day operations were carried out by U.S. NPP operators. While not every Kemeny Commission recommendation was implemented, there was a substantial increase in regulatory requirements (197), including requiring modifications to existing NPPs – which significantly increased the overall costs to operate these NPPs – and the addition of new equipment for NPPs that were under construction or planned, which essentially doubled the time needed to construct NPPs, and factored into the U.S. industry’s decision to stop the construction of 76 of the 129

NPPs that had been given regulatory approval to be built at the time of the TMI-2 accident 198.

1.11.2 The Response to the 1986 Chernobyl Disaster

Among the actions taken globally to address and minimize the impacts of future nuclear accidents following the Chernobyl disaster was the 1989 formation of the World

Association of Nuclear Operators (WANO) to provide a mechanism for nuclear operators around the world to share information in order to enhance nuclear safety (WANO, 2014).

197 Interestingly, most of the TMI-inspired regulations have since been rescinded or modified since they were found to have had made insignificant improvements to safety. 198 While the U.S. Atomic Energy Commission had anticipated in the 1960’s that more than 1,000 reactors would be operating in the U.S. by 2000, only about a quarter that number made it to the stage of seeking a license, and more than 120 reactor orders were canceled. About 130 U.S. NPPs were built, but as of October 2019, only 98 NPPs are still operating while the remaining NPPs were prematurely closed due primarily to reliability or economic issues. “Regulatory uncertainty” has been cited by the nuclear industry as a contributing factor in these closures.

110 In addition, in 1994 the Convention on Nuclear Safety (CNS) was adopted. The CNS is a multi-national treaty that seeks to prevent future nuclear power accidents by legally committing participating States, i.e., “Contracting Parties” (CPs), operating land-based

NPPs, to maintain a high level of safety by setting international benchmarks to which the

CPs subscribe; and, obligating each of the CPs to prepare a triennial report, that is shared with all other CPs, on the CP’s adherence to the CNS (199).

1.11.3 Response to the 2011 Fukushima Dai-ichi Accident

Following the Fukushima Dai-ichi accident, every State with an existing nuclear energy program – as well as most of those States that are planning or proposing to develop a nuclear energy program – evaluated and either took, or are considering, actions to minimize the potential consequences a catastrophic natural or man-caused calamity could have on their State’s NPP(s) and population (200). These actions include determining how existing, or proposed, safety and security oversight programs will need to be modified based on new and evolving understanding of potential natural or man- caused risks, and what – if any – modifications must be made to existing and future

NPPs’ systems, structures and components, i.e., the physical hardware, and to normal and emergency operating procedures, i.e., the instructions and practice that the NPP’s operator utilize in ensuring the safe operation and shutdown of the NPP, to ensure a

199 IAEA (2019) “Convention on Nuclear Safety”; https://www.iaea.org/topics/nuclear-safety-conventions/convention- nuclear-safety 200 IAEA (2019) “Fukushima Nuclear Accident”; https://www.iaea.org/newscenter/focus/fukushima

111 greater capability to withstand natural or man-caused occurrences, including the U.S. nuclear industry’s FLEX program(201).

The Fukushima Dai-ichi accident has raised questions about the effectiveness of the

CNS, especially since the only oversight of each CP’s CNS compliance is the triennial reviews by the other CPs of the other CPs’ self-reports. Further, there is neither enforcement authority within the CNS to ensure CP compliance, nor penalties for those

CPs who do not report. The CNS’ Contracting Parties met August 27-31, 2012, at the

International Atomic Energy Agency (IAEA) in Vienna, Austria, for the CNS's Second

Extraordinary Meeting to discuss long-term nuclear safety in light of the Fukushima Dai- ichi accident (IAEA, 2012), and again on March 24 – April 4, 2014, during the Sixth

Review Meeting to discuss actions taken since the Second Extraordinary Meeting. The

Sixth Review Meeting resulted in a proposal to significantly amend the CNS, throwing into question the CNS’s continued viability. However, in the subsequent February 2015

Diplomatic Conference, the proposed amendment was not ratified and instead the CPs adopted the “Vienna Declaration on Nuclear Safety” which lays out three principles to in the prevention of future accidents with radiological consequences and to mitigate the consequences if such accidents should occur (202).

201 The “diverse and flexible mitigation capability,” or “FLEX” program was initiated in 2012 and is intended to be a ready means of responding to natural or man-made disasters. FLEX does this by having pre-designated volunteer staff from non-impacted NPPs and by pre-positioning emergency equipment, such as back-up power generators, in several locations around the nation, which can be brought to NPP sites that have experienced an accident that is beyond-design basis, e.g., greater than what was assumed in the initial plant design, and requires additional resources to ensure safe shutdown of the facility. The European equivalent, “hard core”, also provides a cadre of experts and equipment to respond to severe accidents (NEI, 2013). 202 IAEA (2019) “Convention on Nuclear Safety”; https://www.iaea.org/topics/nuclear-safety-conventions/convention- nuclear-safety

112 1.12 Challenges from Diverse, and Divergent, Regulatory Oversight

The lack of an international organization which can provide a single set of internationally-acceptable safety and security standards and regulations means that each

State must establish their own indigenous requirements. Since there are already disparate, and often conflicting, safety and security requirements in the States that presently have nuclear energy programs, these dissimilar regulations and standards make global nuclear commerce even more challenging and, perversely, lead to less nuclear safety and security, especially if a State, such as the PRC(203), acquires its nuclear technology from a variety of suppliers that are based in differing countries with correspondingly divergent regulatory requirements. Drawing upon multiple countries’ regulatory frameworks could result in conflicting regulatory requirements which could cause confusion for both operators and regulators in the event of an accident. However, such an eclectic aggregation of various regulatory regimes could be minimized if there was a distinct, unified, set of requirements that was in use world-wide.

1.13 Need for a Global Regulatory Authority

Given the lack of an international regulatory regime and imminent growth in the numbers of NPPs, particularly in Developing States, there is a need for a single international nuclear governance body which would develop regulatory standards that can

203 The People’s Republic of China presently has in operation, under construction, or planned, PWR NPPs based on designs from France, e.g., Areva’s European Pressurized Reactor (EPR) and an indigenous variation (ACPR-1000), and the Improved Chinese PWR (CPR-1000), an indigenous up-power variation on a 1980’s era French design); the U.S., e.g., Westinghouse’s AP-1000 and a proposed indigenous up-power variation, the CAP-1400; Russia’s VVER-1000 and BN-800; and, Canada’s CANDU-6, among others (WNA, 2014c).

113 be adopted globally. This need is more acute today than it was when first proposed by

Baruch in 1946, and is due to the following:

a) the prevalent model globally is for the nuclear regulator to be under ministerial

control (frequently by the ministry that advocates for nuclear energy

development) instead of having independence from direct political influence;

b) there are multiple nuclear vendors in various countries designing and building

their components to differing country-specific standards; and,

c) there are a very large number of Embarking (mostly Developing) States who are

proposing adding nuclear power to their national energy mix.

Nuclear power plants are being built, or are in the planning stages, in Developed

States such as the U.S., U.K. and France, and also in Developing States such as

Bangladesh, Indonesia, Malaysia, and Vietnam. Embarking States will face significant challenges in adopting nuclear technologies; and, if they are to purchase (or indigenously develop) and operate NPPs, it is in the best interests of not just the Embarking State, but the world community as a whole, to ensure that all States that add nuclear to their energy mix do so safely and securely. Such an international nuclear regulatory agency could aid

NNRAs in accomplishing their safety and security mission by: researching and developing common and consistent standards and regulations that places a definitive floor on the minimal safety and security requirements; providing professional and technical training and assistance to new or under-resourced NNRAs; and, performing

114 regular in-depth peer reviews to assist the NNRA’s on-going self-improvement by benchmarking their performance against established standards of excellence (204).

1.13.1 Existing Regulatory Models

There are existing models that could be utilized to ensure that nuclear safety and security is maintained as various countries add nuclear energy to their electrical generating capacity, either initially or in addition to existing NPPs. Of particular note are the models of the civilian aviation and maritime shipping industries in the post-World

War II period, and the model of global telecommunication. Specifically, three specialized UN agencies – the International Civil Aviation Organization (ICAO), the

International Maritime Organization (IMO) and the International Telecommunications

Union (ITU) – described above promote the safe and secure development of international civil aviation and maritime shipping (ICAO and IMO), and organize and standardize telecommunications globally (ITU). These organizations do not directly regulate aviation, maritime shipping or telecommunications per se, but rather develop regulations and standards that member States implement in lieu of developing their own – potentially insufficient and/or overly burdensome – regulations and standards, which ensures that there is a common starting point for international civil aviation, maritime shipping and for global communications. The standard criteria that ICAO and IMO promulgate ensures that minimal levels of safety and security are mandated, and provide a basis for

204 While the suggested bench-marking bears a similarity to the peer-reviews performed by the IAEA’s IRRS Missions, which evaluate regulatory bodies against IAEA guidance, it is envisioned that the proposed international nuclear regulatory agency would provide a more rigorous and ongoing sets of evaluations, similar to what WANO or INPO does presently for nuclear operators, as opposed to IRRS reviews which are only performed when requested by the NNRA.

115 consistency in safety and oversight that can be utilized by civilian designers/vendors, operators and regulators. The standards set forth by the ITU ensure that the world can communicate. It should be noted that, as appropriate, the State’s cognizant regulatory authorities can and do augment ICAO, IMO and/or ITU standards to meet local needs, or opt to not adopt due to existing, and usually more stringent, indigenous requirements.

Based on the above, and as further developed in the following chapters, I researched the formation of a new specialized intergovernmental organization that, like ICAO, IMO, and ITU, could develop standards and regulations that both Developed and Developing

States could adopt in support of their advancement of an indigenous national nuclear energy program, thus establishing a technically-justifiable set of minimum safety and security standards to be maintained globally. Such a new agency would be different from the IAEA and other similar existing organizations since, like the cases of ICAO, IMO and

ITU, States with nuclear power programs would be expected to abide by the regulations and standards that the organization develops for designing, building, operating, maintaining, overseeing and decommissioning NPPs in order to participate in the global nuclear energy community. Unlike the IAEA, this organization would have sufficient authority to ensure that non-complying States would be negatively impacted. Given the advantages, and mitigating the disadvantages, that such an agency would offer, States with existing and proposed nuclear energy programs might be inclined to embrace a true transnational nuclear regulatory agency.

States such as the U.S. and France, with mature nuclear infrastructures, could provide an initial cadre of subject matter experts and regulatory frameworks to build upon. The new organization could utilize the lessons-learned from the ICAO, IMO, and ITU models

116 to develop a legal (regulatory), educational and technical infrastructure which would provide reasonable assurances that nuclear energy could be safely and securely developed and operated in the countries that utilize its expertise. Further, the new organization could be designed to have the legal authority to preclude the member States of the

Nuclear Suppliers Group(205), and other non-affiliated nuclear technology vendors, from selling to States that do not abide by the organization’s standards and regulations. For instance, the P5+1 (206) imposed economic sanctions in an attempt to encourage Iran to renounce it uranium enrichment and reprocessing activities – such actions could also be authorized for the proposed regulatory organization.

1.14 Research Questions Overview

The policy problem to be addressed by this dissertation is that existing intergovernmental organizations that deal with the safety and security oversight of commercial nuclear energy – specifically, the UN’s IAEA, the more limited membership of the OECD’s NEA, and the even more limited membership of regional cooperative regulatory networks and other regulatory associations such as the EU’s WENRA – are,

205 The NSG is a Group of 48 nuclear supplier countries that seeks to contribute to the non-proliferation of nuclear weapons through the implementation of two sets of Guidelines for nuclear exports and nuclear-related exports (see www.nuclearsuppliersgroup.org). Currently the participating Governments of the NSG are Argentina, Australia, Austria, Belarus, Belgium, Brazil, Bulgaria, Canada, People’s Republic of China, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Kazakhstan, Republic of Korea, Latvia, Lithuania, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, the United Kingdom and the United States. The European Commission and the Chair of the Zangger Committee participate as permanent observers. The NSG regime is a voluntary association, not bound by a treaty, and therefore has no formal mechanism to enforce compliance. 206 The P5+1 is composed of the five permanent members of the UN Security Council, e.g., U.S., Russia, PRC, U.K. and France, plus Germany.

117 by design, incapable of adequately regulating the safe and secure use of nuclear materials in their various members’ States since none of these organizations have the legal authority to impose requirements, or sanctions, on their members. Also, regional cooperative regulatory networks and other regulatory associations are primarily focused on information exchanges, as opposed to developing and enforcing common standards and regulations among their members. There is a need for a new autonomous, competent and authorized organization that could be able to provide a set of regulatory standards and framework that are utilized globally. Such an organization could assist Embarking

States in creating their own indigenous national nuclear authority based on these standards and framework, and ensure that the safety and security regulatory structures of the States with an existing nuclear energy program are aligned or face some consequence.

Why is such an organization necessary? Could not an argument be made that the existing arrangement of an NNRA overseeing its own nuclear facilities, with the sharing of advice and best practices through existing regional and global international organizations, will be sufficient for the future?

Evidence to date suggests that existing regulatory frameworks are not sufficient. As is apparent from such accidents as the 1979 partial core meltdown at Three Mile Island, the 1986 steam explosion, fire and meltdown at Chernobyl and the 2011 steam explosion and meltdown at Fukushima Dai-ichi, as well as thousands of “near-misses”, there is a need for a trans-national regulatory authority that does not have a conflated mission of oversight and promotion, and which is separate from both industry capture and governmental interference in order to ensure that it can provide independent oversight.

Such an organization could provide a consistent set of well-researched and validated

118 technology-neutral and technology-appropriate (207) standards and regulations that each

State with a nuclear energy program could adhere to, and which will have the legal authority to provide safety and security oversight of the commercial nuclear energy programs, both by inspecting the operating entities and by ensuring the NNRA is effective. This would be a significant expansion of what IAEA does with its Integrated

Regulatory Review Service (IRRS) and International Physical Protection Advisory

Service (IPPAS) missions, and more akin to INPO reviews.

There have been a handful of nuclear power plant accidents over the past 50 years which have directly caused the deaths of less than 100 individuals, but which resulted in staggering economic costs from the associated cleanup and decommissioning of the affected plants. There have also been dozens of “near-misses,” in which instances the facility was safely shut-down prior to an actual accident, or the causes of the potential accident were mitigated or averted in time to prevent an accident. In the cases of Three

Mile Island and Chernobyl, there is significant evidence that the long-term environmental and human consequences are not minimal. The World Health Organization (WHO) has estimated that there may be an additional 9,000 cancer deaths related to the Chernobyl accident, which is less than a one-percent increase over the expected number of cancer deaths absent the accident. The WHO is still evaluating the effects of the Fukushima

Dai-ichi accident, but has found only minor increases in the odds of near-by residents contracting certain types of cancer (WHO, 2013). Further, it is unlikely that the

207 For the purpose of this dissertation, “technology-neutral” standards and regulations do not recognize or advantage any particular technology, while “technology-appropriate” standards and regulations take into account the special needs of one type of technology over another. For instance, the regulation of high-temperature gas reactors will require certain exceptions from that required by light water reactors.

119 immediate environs that were contaminated by Chernobyl and Fukushima accidents will be released to general use for years, perhaps even decades, to come.

Further, several of the “near-misses” led either to extended outages, e.g., Forsmark and Davis-Besse, or premature permanent shutdowns of the facility, e.g., San Onofre. To date, all of the accidents have occurred in Developed States that have the technical and fiscal resources to adequately respond. However, there have been several “near-misses” in Developing Nations, such as the reactor coolant leakage at Pakistan’s KANUPP-1 (208), and unsafe conditions at both Bulgaria’s Kozloduy units 1 and 2 and Slovakia’s Bohunice units 1 and 2 (209), which have required

As described above, there is every expectation that over the next several decades

Developing States will be adding nuclear power to their energy mix. Without the resources available to Developed States, there exists a much greater concern as to whether Embarking States, as well as the Developing States that have already added nuclear to their energy mix, will be able to successfully design, build, operate, maintain and – most importantly – appropriately oversee these nuclear power facilities to ensure that they remain safe and secure. Further, without consistent standards and regulations, even Developed States will be hard-pressed to be able to continue to ensure the public that the existing, and new, plants can be as safe and secure as can be reasonably achieved.

208 Khan (2011/04/28) “Underpowered and unsafe, Pakistan's nuclear reactors are just big boys' toys”; The Guardian; https://www.theguardian.com/environment/2011/apr/28/unregulated-unsafe-pakistan-nuclear-reactors 209 World Nuclear Association (2019) “Nuclear Power in Slovakia”; https://www.world-nuclear.org/information- library/country-profiles/countries-o-s/slovakia.aspx

120 1.15 Research Questions

This dissertation examines what has, and has not, worked in the past for three intergovernmental standards-setting organizations, and assesses how the lessons learned can inform the development of an international organization to regulate nuclear energy.

Two research questions are:

1) What are the lessons learned from three intergovernmental organizations that

create globally-utilized standards and regulations, i.e., ICAO, IMO and ITU,

which could be applied to assist in developing an international nuclear

regulatory agency that could provide reasonable assurance of the safe and

secure operation of commercial nuclear power globally?

2) What are the options to empower an international nuclear regulatory agency,

e.g., international treaties, in order to ensure that it has the necessary resources

and authority to facilitate safe and secure nuclear power usage?

1.16 Research Motivation

Over the 60-year history of commercial nuclear energy production, there have been several significant accidents and near-misses, including the Three Mile Island meltdown in 1979, the Chernobyl disaster in 1986, and the Fukushima-Daiichi accident in 2011.

However, even with these extremely public disasters, virtually every country with an

121 existing nuclear power program still has their plants in operation (210), (211). Construction of new NPPs is continuing, and almost 500 additional NPPs are planned or proposed, with a majority of these in Developing States.

When I started this research, the so-called “nuclear renaissance,” a period of renewed interest by U.S. electrical utilities in adding nuclear energy to their portfolio based on the incentives for nuclear contained in the Energy Policy Act of 2005, was just beginning to abate. This fading of interest was driven mostly by economic reasons, including the increased availability and diminishing costs of natural gas, the recession, and slowing growth demands for electricity. However, this renaissance was not fading elsewhere in the world, and especially in Developing States. At the time, I considered NPPs to be on the edge of becoming a marketable commodity akin to commercial aircraft or maritime freighters. I also considered that the next generations of NPPs to be more digitally controlled and operated. As such, I chose the three cases of ICAO, IMO, and ITU because I was predicting that their lessons learned would be applicable to future NPPs.

I have been involved in nuclear energy for the vast majority of my professional life, first in the U.S. Navy as an enlisted nuclear-trained crew-member on nuclear-powered ballistic missile submarines, then as a civilian overhauling nuclear powered submarines,

210 Japan’s government has reaffirmed nuclear energy as a key base-load power source that would continue to be safely utilized in order to achieve a stable and affordable energy supply and to combat global warming. As of March 2014, regulatory reviews are underway to restart 48 NPPs that were shut-down following the 2011 Great East Japan Earthquake and subsequent tsunami. 211 Germany’s energiewende (energy transition), first proposed in 1980, is a policy that advocates a switch from fossil and nuclear energy sources to so-called renewables. This policy, enacted in 2011 (following the Fukushima Dai- ichi accident), prematurely (i.e., prior to expected) shutters all German NPPs, and adds a fuel surcharge to these NPPs, further reducing their profitability. The energiewende policy has resulted in Germany having some of the highest electricity costs in Europe, while France (which produces about 80% of electricity from nuclear sources) has some of the lowest electrical costs.

122 as a member of the staff at the USNRC (212), and most recently as the Director of the

USDOE’s Office of Nuclear Safety and Environmental Assessments. Further, I have been involved as a subject matter expert in several consensus standards development committees for almost 20 years, including ASME (formerly the American Society of

Mechanical Engineers) and the American Nuclear Society (ANS) where I Chair the Large

Light Water Reactor Consensus Committee (LLWRCC, formerly the Nuclear Facilities

Standards Committee). In these diverse professional positions, and in my collateral standards development duties, I have been able to consider which regulatory and technical best practices are worth emulating, and where the USNRC and its international counterparts have room for improvement. Through these analyses, I have concluded that there is a need for a consistent and harmonized set of standards and regulatory practices that should be adhered to globally in order to better ensure that nuclear safety and security can be maintained and improved.

This extensive professional experience gives me a strong understanding of nuclear oversight issues, and has provided me with insights as to possible areas for improvement.

However, in as I have been so intimately involved in reviewing and assessing proposals for a large percentage of my professional career, I understand viscerally that preexisting assumptions, especially about those things that “everyone knows,” as well as unthinking deference to “we’ve always done it this way,” is almost certain to blind one to actual

212 At the USNRC, I served as a Licensing Project Manager, a senior technical subject matter expert, i.e., Senior Materials Engineer, a Technical Assistant to both the USNRC’s Chairman and to the Director of the Office of Nuclear Regulatory Research, a Team Leader for International Activities, and as a Branch Chief in two technical branches.

123 underlying truths. As such, I have tried to put aside my prejudices in order to approach this examination with an open mind.

1.17 Dissertation Outline

Chapter 1 presents the background on the growth of NPPs and associated challenges, the research questions, and the motivation for this dissertation.

Chapter 2 presents an overview of the literature that provides an academic basis for this dissertation, including a review of the literature on Global Governance, especially as it pertains to energy governance, and the literature on governance related to international civil aviation, maritime shipping, and to global information and communication technologies.

Chapter 3 presents the research model and associated methodology, including a description of the methods utilized and the research setting.

Chapter 4 presents the results from the three cases studies on the International Civil

Aviation Organization, the International Maritime Organization, and the International

Telecommunication Union.

Chapter 5 presents the conclusions of the study and recommendations for next steps.

124 2 Chapter 2: Literature Review

This chapter presents an overview of the literature that provides an academic basis for this dissertation, including a review of the literature on global governance, especially as it pertains to energy governance; and, the literature on governance related to international civil aviation, maritime shipping, and to global information and communication technologies. In addition, first I provide a historical overview covering the development of nuclear science and technologies, with a focus on nuclear energy, and the various regulatory mechanisms that have been utilized to govern the safety, security, and safeguards of these technologies.

2.1 Historical Overview of Nuclear Science and Technologies

Nuclear science and technologies, as evident from several eponymous accidents discussed below, has the potential to present a serious hazard to human health and the environment if improperly used. Further, nuclear technologies have an inherent dual-use capability – they can be utilized for either peaceful or military purposes (213). As such,

213 It should be stressed that all dual-use materials and technologies have legitimate commercial uses, but also can be readily repurposed to military or other inimical applications. The U.S. Department of Commerce maintains the Commerce Control List of dual-use items, software, and technology it controls (15 CFR 774), which is divided into ten broad categories: 0 – Nuclear 4 – Computers 7 – Navigation and Avionics 1 – Materials, Chemicals, 5 – Telecommunications and 8 – Marine Microorganisms and Toxins Information Security 9 – Propulsion Systems, 2 – Materials processing 6 – Lasers and Sensors Space Vehicles and 3 – Electronics Related Equipment

125 there are three necessary and complementary components to the safe and secure use of nuclear technologies:

1. appropriate safety and security standards that are adhered to when designing,

constructing, operating, maintaining, deactivating, and decommissioning nuclear

facilities (214);

2. a culture that actively considers safety, security, and safeguards (215) constraints

in every decision; and,

3. adequate and appropriate regulatory oversight.

This section discusses the historical development of nuclear science and technologies, including the use of the nascent knowledge to produce fissile materials (216) for use in nuclear weapons (217), the subsequent commercialization, and the successive measures taken to mitigate the inimical proliferation of these technologies and capabilities. I also examine the development of nuclear governance (218) used to ensure that commercial

214 For the purposes of this dissertation, and unless otherwise clearly delineated, the various conjugates of “operate” will be utilized as a shorthand for the several phases in the life of a nuclear power plant, including designing, constructing, maintaining, deactivating, and decommissioning. 215 See Footnote 15 in Chapter 1. 216 See Footnote 146 in Chapter 1. 217 Also referred to as “weapons of mass destruction” (WMD), a WMD is defined in 18 USC §2332 as a destructive device that uses nuclear, radiological, chemical, biological, or other materials to kill or cause significant harm. 218 As discussed in Chapter 1, Footnote 101, there is a distinction between governance and government. James Rosenau characterized the difference as: “Both refer to purposive behavior, to goal-oriented activities, to systems of rule; but government suggests activities that are backed by formal authority, by police powers to insure the implementation of duly constituted policies, whereas governance refers to activities backed by shared goals that may or may not derive from legal and formally prescribed responsibilities and that do not necessarily rely on police powers to overcome defiance and attain compliance.” (p. 4).

126 nuclear power plants (NPPs) are designed, built, operated, maintained, and decommissioned safely and securely.

2.1.1 Synopsis of the Development of Nuclear Theory and its Applications

While the concept that matter is composed of separate and distinct components is prehistoric in its formulation, it was the pre-Socratic Greek philosophers Leucippus and

Democritus, circa 430 BCE, who are regarded as the first to conceive what became known as “atomism.” Leucippus and Democritus argued that it is impossible to infinitely divide matter into smaller pieces, and therefore matter must be made up of some extremely tiny particles, which they termed “atomon” (ἄτομον, i.e. “uncuttable, indivisible”). This position remained mostly an interesting if somewhat esoteric point for natural philosophers to debate until the 19th Century, when modern science began to emerge.

In 1803, English chemist John Dalton expanded on Leucippus and Democritus in order to explain his observations that different gases are absorbed into water with different rates, and that elements combine in ratios of small whole numbers (219). Dalton proposed that each element is composed of particles – “atoms” – of definite, unique, and characteristic weights, which cannot be altered or destroyed by chemical means, but which can be combined into more complex structures, i.e., “chemical compounds.”

Rosenau (1992) “Governance, Order and Change in World Politics”; in Rosenau and Czempiel, Governance Without Government: Order and Change in World Politics; Cambridge: Cambridge University Press. 219 Known as Dalton’s Law or the Law of Multiple Proportions, it is based on the law of conservation of mass such that the total mass of reactants equals the total mass of products; as such, the quantities of reactants and products typically form a ratio of positive integers.

127 However, while Dalton believed that atoms are the smallest units of matter, he also postulated that, depending on the element, atoms had differing sizes and weights.

Russian chemist Dmitri Mendeleev, who formulated the modern periodic table

(Figure 2-1) in 1871, extended Dalton’s theory, providing insights into the chemical properties of elements based on their atomic weights (220), and accurately predicted the discovery of then unknown elements based on their absences from his version of the periodic table (221).

220 More properly “atomic mass” or the “standard atomic weight” (Ar, standard), it is the weighted arithmetic mean of the masses of the element’s various isotopes. For instance, natural uranium, which has 92

protons (atomic number), has an Ar, standard of 238.0289, since this sample would be composed of the three uranium isotopes in the following percentages: 99.2739–99.2752-percent uranium-238 (238U or U- 238), 0.7198–0.7202-percent 235U, and 0.0050–0.0059-percent 234U (trace isotopes 232U, 233U, and 236U exist naturally as exceedingly small fractions). 221 The earliest periodic table was formulated in 1817 by German chemist Johann Wolfgang Döbereiner, who grouped elements into triads, based on their chemical properties. The International Union of Pure and Applied Chemistry, the international federation of National Adhering Organizations that represents chemists in individual States, officially confirmed in December 2015 elements 113, nihonium; 115, moscovium; 117, tennessine; and, 118, oganesson, filling the seventh, and presently bottom, row of the periodic table.

128

Figure 2-1: Periodic Table of the Elements

129 In 1895, the German engineer and physicist Wilhelm Röntgen, while investigating the properties of electrical currents passing through a vacuum, noticed that a screen was luminescing; however, he was not utilizing that screen for the experiments he was conducting. After additional experimentation, Röntgen determined that the shimmering he was seeing from the screen was not the result of his experimentation, but rather was coming from an unknown source. Röntgen published his discovery of what he termed

“x-rays,” a form of high-energy electromagnetic radiation (222), which could penetrate virtually all materials he tested and were able to leave an image on a photographic plate.

This capability was almost immediately seen to have medical applications (223); however, unforeseen side effects for those earlier x-ray experimenters included instances of skin burns, hair loss, and even death (224).

222 The electromagnetic spectrum is classified according to the wavelength from the very short frequency gamma (γ) rays, through x-rays and visible light, and to the long radio waves. German astronomer William Herschel discovered infrared radiation in 1800, and in 1801 German physicist Johann Wilhelm Ritter discovered ultraviolet. Scottish physicist James Clerk Maxwell developed what is now known as Maxwell’s equations for the characterization of electromagnetism in 1862. 223 Röntgen’s x-ray photograph of his wife's hand was the first such photograph of a human body. His wife, Anna Bertha Ludwig, is reported to have said when she saw the picture, “I have seen my death.” PBS NewsHour (2012). “'I Have Seen My Death': How the World Discovered the X-Ray”; aired December 20, 2012; PBS. 224 American glassblower Clarence Madison Dally, an assistant to Thomas Edison, worked on the development of the Edison fluoroscope and, by 1900 was suffering radiation damage to his hands and face, necessitating the amputation of his arms at the elbow and shoulder. Dally died from mediastinal cancer in 1904, and is thought to be the first American to die from the effects of experimentation with radiation. Brown (1995) “American Martyrs to Radiology – Clarence Madison Daily (1865-1904)”; American Journal of Roentgenology, AJR 1995; 164:237-239 0361-803)(/95/1641-237 American radiographer Elizabeth Fleischman, who began experimenting with Röntgen’s x-rays in 1896 and won recognition from the Surgeon General of the U.S. Army for her work with soldiers during the Spanish-American War, had to have her right arm amputated in 1905 due to significant radiation damage, and she is the first person known to have died from the effects of her medical x-ray work. Brown (1995) “American Martyrs to Radiology – Elizabeth Fleischman Ascheim (1859-1905)”; American Journal of Roentgenology; 164:497-499 0361-803X/95/1 642-497

130 In 1896, French physicist Henri Becquerel inadvertently discovered spontaneous radioactivity while performing experiments on phosphorescent materials – materials that glow in the dark after being exposed to light – using uranium salts. Further investigation determined that some invisible radiation was causing photographic plates to darken (225); however, unlike the phosphorescence effects he was investigating, this occurrence did not depend on an external source of energy, but rather seemed to be an artifact of the uranium salts.

Dalton’s model of differing-sized atoms was superseded in 1897 when English physicist J.J. Thompson published work on the conduction of electricity in gases in which he demonstrated the existence of a sub-atomic particle, the electron (226), which carry electric currents and have a negative charge. Thompson erroneously hypothesized that electrons are uniformly distributed through the atom, proposing in 1904 what came to be known as the “plum pudding model.”

In 1898, expanding on the research performed by Becquerel, Polish-born and naturalized-French physicist and chemist Marie Skłodowska Curie (227) and her French

225 Similar to Fleischman, Becquerel‘s experiments with radioactive materials led to his suffering significant burns from radiation, and is thought to have contributed to his death in 1908.

226 If an atom or molecule loses or gains electrons, it is said to have undergone IONIZATION; hence, IONIZING RADIATION is radiation that has sufficient energy to detach electrons from atoms or molecules. 227 Marie Skłodowska Curie was the first woman to win a Nobel Prize, the first person and only woman to win the Nobel Prize twice, and the only person to win the Nobel Prize in two different scientific fields. She was the first woman to become a professor at the University of Paris, and was the first woman to be entombed on her own merits in the Panthéon in Paris. She coined the term “radioactivity,” was a pioneer in the development of its theory, and created methodologies for isolating radioactive isotopes. She founded the medical research centers the Curie Institutes, located in Paris and Warsaw. Marie Curie died in 1934 of aplastic anemia, a result of her exposure to radiation exposure from her research.

131 physicist husband Pierre Curie, published papers announcing the discoveries of polonium and radium, the first elements to be identified solely by their strong radioactivity.

In 1898, New Zealand-born physicist Ernest Rutherford, the “father of nuclear physics,” discovered two types of radiation, alpha (228) and beta rays (229); that the element thorium produces another element, the radioactive gas radon (56Rn); and, the concept of

“radioactive half-life” (230). In 1903, Rutherford and English radiochemist Frederick

Soddy introduced a groundbreaking concept when they described radioactivity as the spontaneous disintegration of atoms into other matter; and, identified gamma rays, a type of radiation that has sufficient energy to detach electrons from atoms or molecules

(ionization). In 1911, Rutherford proposed a new model of the atom, composed of a positively charged central mass (now known as the nucleus) within a cloud of negatively charged electrons (231). In 1917, Rutherford performed the first artificially-induced nuclear reaction by bombarding nitrogen with alpha particles, discovering the emission of a subatomic particle that he later named the proton (232).

228 Also known as alpha particles or alpha radiation (symbol α), α is a particle composed of two protons and two neutrons that is identical to a helium (4He) nucleus. 229 Also known as beta particles or beta radiation (symbol β), β is a high-energy, high-speed electron or positron (antimatter counterpart of the electron) emitted by the decay of an atomic nucleus. 230 Half-life is a probability that during that time period, exactly half of a sample of radioactive material will decay on average. For example, if a material’s half-life is one minute, then 60 seconds later half of the material’s atoms have decayed into a new isotope; however, if there is just one atom, then after a minute there may, or may not, be a new isotope – half-life works only for a relatively large sample. 231 In 1913, Rutherford’s model was expanded on by the Danish physicist Niels Bohr, who provided a key quantum physical interpretation that gave a more robust theoretical underpinning to the atom’s composition. 232 Rutherford is often incorrectly credited with being the first person to transmutate – convert one element or isotope into another – a sample of nitrogen by bombarding it with alpha particles, which created an unstable isotope of fluorine, which then disintegrated into oxygen. In reality, it was the experimental physicist Patrick Blackett, then working with Rutherford, who performed the experiments and published the results in 1925.

132 The neutron, with a neutral charge and slightly more mass (233) than a proton, was discovered in 1932 by British physicist James Chadwick. This discovery explained the mass discrepancy scientists had found between atoms of the same element – while all atoms of the same element have the same number of protons, atoms with different numbers of neutrons have differing atomic weights, and are known as “isotopes” (234).

The realization that an element’s various isotopes have the same number of protons, but differing numbers of neutrons, resolved this conundrum.

In 1933, Hungarian physicist Leó Szilárd patented the concept of a nuclear reactor, based on his trailblazing realization that a nuclear chain reaction could be initiated and then controlled by mitigation of neutron production (235); however, this revolutionary

233 The mass of a neutron is 1.674927471×10-27 kg, a proton has a mass of 1.67262192369×10−27 kg, and an electron has a mass of 9.10938356×10−31 kg. 234 The terms “isotope” and “nuclide” can be used interchangeably; however, “nuclide” is more generic and is typically used when referring to different elements, while “isotope” is used when referring to several different nuclides of the same element. There are more than 3,100 known nuclides, which are typically represented in a two-dimensional graph with nuclides arranged along the X axis by their numbers of neutrons and along the Y axis by their numbers of protons. This chart (or table) of nuclides provides a map to the nuclear behavior of nuclides, as opposed to the periodic table, which only maps chemical behavior of isotopes (which do not differ chemically to any significant degree, with the exception of hydrogen isotopes). IAEA maintains a “Live Chart of Nuclides” at https://www-nds.iaea.org/relnsd/vcharthtml/VChartHTML.html 235 Interestingly, Szilárd conceived of the possibility of nuclear chain reactions due in part to his irritation of Rutherford’s dismissal of the possibility of using nuclear energy for practical purposes. In a speech discussing the experiments his students, John Cockcroft and Ernest Walton, had performed in 1932 in which they had bombarded lithium with protons and “split” it into alpha particles, Rutherford stated: “We might in these processes obtain very much more energy than the proton supplied, but on the average we could not expect to obtain energy in this way. It was a very poor and inefficient way of producing energy, and anyone who looked for a source of power in the transformation of the atoms was talking moonshine. But the subject was scientifically interesting because it gave insight into the atoms.” (Rhodes, 1986; pp 27) After reading Rutherford’s speech in The [London] Times on the morning of September 12, 1933, Szilárd was crossing a London street that afternoon and noticed the ripples caused by rain in puddles. This led to his realization about chain reactions, that they were similar to waves propagating. Based on his prescient recognition of the

133 advancement in understanding nuclear reactions did not include fission as a source for the needed neutrons, since it predated the actual physical discovery of nuclear fission by five years.

In January 1934, French physicists Irène Joliot-Curie and Frédéric Joliot (236) announced that they had induced radioactivity by bombarding various elements with alpha particles. In March 1934, Italian physicist Enrico Fermi announced that he had induced radioactivity in 22 different elements using neutrons (237). Fermi also believed that his neutron bombardment of thorium and uranium created two new, and heavier, elements with 93 and 94 protons, which he named ausonium (now known as neptunium) and hesperium (now known as plutonium) (238).

It wasn’t until 1938 that German chemists and physicists Otto Hahn and Fritz

Strassmann, and Austrian physicist Lise Meitner, in their neutron bombardment experiments of uranium, found that some of the resulting material was barium, which led them to the conclusion that some of the sample uranium nuclei had burst, what they later

potential destructive capability uncontrolled chain reactions could present, Szilárd patented the concept (British patent 630,726) and assigned the patent to the British Admiralty to ensure its secrecy. (Rhodes, 1986; pp 292-293) 236 Irène Joliot-Curie was the daughter of Marie Curie and Pierre Curie. She and her husband, Frédéric Joliot-Curie, were awarded the Nobel Prize in Chemistry in 1935 for their discovery of artificial radioactivity. 237 Fermi was awarded the Nobel Prize in Physics in 1938 for his “demonstrations of the existence of new radioactive elements produced by neutron irradiation, and for his related discovery of nuclear reactions brought about by slow neutrons.” 238 German chemist Ida Noddack was the first to suggest, in her criticism of Fermi's 1934 neutron bombardment experiments, that instead of conclusively proving that he had created two new, and heavier, elements, that he had instead failed to consider the possibility that some of the uranium had broken into fragments of lighter isotopes. However, because she wasn’t legally allowed to work as a scientist, her insights were ridiculed; however, following the announcement of the discovery of fission, Fermi acknowledged that Noddack had been correct, and amended his Nobel acceptance speech accordingly.

134 termed nuclear fission (239), and had released enough energy – about 200 million electron- volts (240) per disintegration – to literally break uranium atoms into different elements.

This led physicists to the realization that nuclear fission could be harnessed to create virtually unlimited amounts of energy (241); moreover, by the onset of World War II

(WWII) on September 1, 1939, physicists around the world were beginning to realize that nuclear fission could be also weaponized, but no one yet knew how either power generation or weaponization could be accomplished.

239 The first public announcement of this momentous discovery was by Niels Bohr on January 26, 1939, during the Fifth Washington Conference on Theoretical Physics, jointly sponsored by The George Washington University and the Carnegie Institution of Washington. GWU (2019) “1939: Fifth Washington Conference on Theoretical Physics: Low Temperature Physics and Superconductivity”; https://physics.columbian.gwu.edu/19 39-fifth-washington-conference- theoretical-physics-low-temperature- Figure 2-2: Plaque Commemorating Fission Announcement physics-and-superconductivity

240 The electron-volt (eV) is a unit of energy equal to exactly 1.602176634×10-19 joules (J). For comparison, the energy consumed by a single 100-watt light bulb in one second is 100 J/s ≈ 6.24×1020 eV/s. The significance of the eV is that it is a fundamental unit that, by utilizing Einstein’s Theory of Relativity (E = Mc2), provides a conversion of mass into energy; for instance, the FAT MAN nuclear weapon used on Nagasaki, Japan, exploded with an energy of about 20 kilotons of TNT (84 TJ or 5×1032 eV, 84×1024 J (TJ), or 23×109 watt-hours (GWhr)), which is about the energy that a typical 1000-MW power plant produces in a day. 241 Among the first to recognize the potential to utilize nuclear fission for energy was the Japanese physicist Hikosaka Tadayoshi who submitted in 1935 a paper theorizing that nuclei hold an energy potential that could be used to both generate power and to be weaponized; however, the paper was rejected by the journal Physical Review, but was then published by the journal Science Paper of the Tohoku Imperial University. Much more widely seen was a similar paper by German theoretical physicist Siegfried Flügge, “Die Ausnutzung der Atomenergie. Vom Laboratoriumsversuch zur Uranmaschine – Forschungsergebnisse in Dahlem” (“The exploitation of nuclear energy. From laboratory experiment to uranium machine - Research results in Dahlem”), which was published in 1939. Flügge was later involved in the Nazi Uranprojekt nuclear weapons program.

135 2.1.2 The Weaponization of Nuclear Science

Szilárd, who had immigrated to the United States of America (U.S.) in 1938, and with the political situation in Europe continuing to deteriorate, was attempting to warn,

Cassandra-like, those in positions of power in the U.S. government of the dangers that the rapidly developing field of nuclear science presented, but to little avail (242). Refusing to be deterred, on August 2, 1939, Szilárd convinced Albert Einstein of his concerns, and asked him to sign a letter (which Szilárd penned) to U.S. President Franklin D. Roosevelt alerting Roosevelt of the threat should Nazi Germany (243) succeed in converting the advancements in physics into the ability to construct “extremely powerful bombs” first.

After receiving the Einstein-Szilárd letter on October 11, 1939, Roosevelt’s regard for

Einstein’s prominence led him to respond by tasking Lyman James Briggs, then director of the National Bureau of Standards, with organizing an Advisory Committee on Uranium to investigate the military uses of uranium; however, due to the uncertainties regarding the feasibility of being able to develop such a weapon, the initial funding for the advisory committee’s investigation was limited (244).

242 Szilárd concern was especially credible given the caliber of scientists working in this field who had remained in Germany, especially given that those like Heisenberg had stopped publishing their results, indicating that the results of their research were being diverted towards the German war effort. 243 Nazi Germany (under the Nationalsozialistische Deutsche Arbeiterpartei – National Socialist German Workers' Party, NSDAP), Fascist Italy (under the Partito Nazionale Fascista – National Fascist Party, PNF), and the Shōwa Empire of Japan were the primary members of the Tripartite Pact (“Axis”). Both Nazi Germany (Uranprojekt) and Shōwa Japan (Ni-Go and F-Go Projects) pursued nuclear weapons programs during World War II, but Fascist Italy did not. 244 On June 27, 1940, President Roosevelt created the National Defense Research Committee (NDRC), with Vannevar Bush, president of the Carnegie Institution of Washington, as its chairman, to co-ordinate defense-related research. The NDRC absorbed the Advisory Committee on Uranium, and renamed it the Uranium Committee.

136 Around the same time that Szilárd and Einstein were warning the U.S. government, leading nuclear scientists in the United Kingdom (U.K.) had also been able to convince the British government of the need to research the feasibility of developing nuclear weapons. Similar to Briggs’ Advisory Committee on Uranium, the British effort was also being conducted in secret under the auspices of the Committee for the Scientific Survey of

Air Defence (CSSAD, or the Tizard Committee, after its chair, Sir Henry Tizard). Tizard tasked British Nobel laureate George Paget Thomson and Australian physicist Mark

Oliphant with determining if there was a threat from German research into developing nuclear weapons. While Thomson concluded this research was not worth pursuing after failing to create a chain reaction in natural uranium (245), it was two expatriate German physicists, Otto Frisch and Rudolf Peierls, working under Oliphant, who, using Bohr’s insights into the fissionability of 235U, were able to calculate that the critical mass of fissile material needed for a nuclear weapon could be small enough to be air-deliverable.

Their March 1940 Frisch-Peierls memorandum (246) concisely defined the feasibility of such a “super-bomb,” and laid out the urgency of responding to the German efforts in developing such a weapon.

245 Natural uranium is over 99-percent 238U, which is non-fissile (see Footnote 135 in Chapter 1), natural uranium cannot sustain a chain reaction using thermal neutrons (free neutrons with a kinetic energy of about 0.025 eV); however, it is fissionable by fast neutrons (kinetic energy levels of about 106 eV, or 1 MeV) and is fertile, meaning it can be transmuted to fissile plutonium-239 (239Pu). 246 “If one works on the assumption that Germany is, or will be, in the possession of this weapon, it must be realized that no shelters are available that would be effective and that could be used on a large scale. The most effective reply would be a counter-threat with a similar bomb. Therefore it seems to us important to start production as soon and as rapidly as possible, even if it is not intended to use the bomb as a means of attack. Since the separation of the necessary amount of uranium is, in the most favourable circumstances, a matter of several months, it would obviously be too late to start production when such a bomb is known to be in the hands of Germany, and the matter seems, therefore, very urgent.” Frisch–Peierls Memorandum, https://web.stanford.edu/class/history5n/FPmemo.pdf

137 The conclusions of the Frisch-Peierls memorandum, coupled with information from the Deuxième Bureau (247) on German interest in “heavy water” (248) from the Norsk Hydro commercial heavy water plant in Norway (249) led the U.K. government to create, in April

1940, the MAUD Committee (250), with Thomson as its chairman, to research the feasibility of nuclear weapons. The research was performed at the Universities of

Birmingham, Liverpool, Cambridge, and Oxford. The research at the University of

Birmingham was focused on studying the properties of uranium hexafluoride (UF6 (251)), the only known gaseous compound of uranium, and on determining the technical features of an atomic bomb, based on the results of the other three teams. The research at the

University of Liverpool investigated the separation of isotopes through thermal diffusion

247 Formally Deuxième Bureau de l'État-major général (“Second Bureau of the General Staff”), it was France's external military intelligence agency until it was disbanded in 1940 following France’s surrender to Germany.

248 Heavy water (deuterium oxide, D2O) is a form of water that contains a larger than normal amount of the hydrogen isotope deuterium, which has an atomic mass of 2, with a proton and a neutron, as opposed to regular hydrogen,

which only has a proton. Deuterium occurs naturally, with about 1 molecule in 6,400; and, D2O has slightly

different nuclear, physical, and chemical properties than normal water (H2O). Heavy water was a vital component of early nuclear research, and is used today as a moderator in heavy water reactors such as the CANDU. 249 In 1934, Norsk Hydro built a unit for producing high concentrations of heavy water by means of electrolysis at the Vemork plant at Rjukan, although for what purpose was not stated. Initially producing about three gallons per month, under Nazi control production was increased to 12 tons per year. Concerns over Nazi access to heavy water led the Allies to make five sabotage attempts on the facility, which ultimately succeeded in February 1943. 250 The name "MAUD" is strange enough to merit explanation. Although many people assume MAUD is an acronym of some sort, it actually stems from a simple misunderstanding. Early in the war, while Niels Bohr was still trapped in German-occupied Denmark, he sent a telegram to his old colleague Frisch. Bohr ended the telegram with instructions to pass his words along to "Cockroft and Maud Ray Kent." "Maud," mistakenly thought to be a cryptic reference for something atomic, was chosen as a codename for the committee. Not until after the war was Maud Ray Kent identified as the former governess of Bohr's children who subsequently moved to England. USDOE (1999) “The MAUD Report”; The Manhattan Project – An Interactive History; https://www.osti.gov/opennet/manhattan-project-history/Events/1939-1942/maud.htm 251 UF6 was important since, at the time, the only way to separate 235U from natural uranium was by centrifuging out the very slightly lighter isotope, which was easier done in the gaseous state.

138 and measuring the fission cross section (252) of 235U. The research at the University of

Cambridge utilized the heavy water obtained from France in June 1940 (253) to determine if a nuclear chain reaction could be produced in a mixture of uranium oxide and heavy water – it could, and as a side benefit would produce plutonium. The research at the

University of Oxford, led by German expatriate chemist and physicist Franz Simon, investigated the feasibility of isotope separation using gaseous diffusion, which was determined to be technically feasible. About a year after the research began, the first draft of the “MAUD Report,” written by Thomson in June 1941, began:

We should like to emphasize at the beginning of this report that we entered the project with more skepticism than belief, though we felt it was a matter which had to be investigated. As we proceeded we became more and more convinced that release of atomic energy on a large scale is possible and that conditions can be chosen which would make it a very powerful weapon of war. We have now reached the conclusion that it will be possible to make an effective uranium bomb which, containing some 25 lb of active material, would be equivalent as regards destructive effect to 1,800 tons of TNT and would also release large quantities of radioactive substances which would make places near to where the bomb exploded dangerous to human life for a long period. (Atomic Archive, 1998 (254))

The U.K.’s response to the MAUD Report was the authorization, by Prime Minister

Winston Churchill on August 30, 1941, of a nuclear weapons research and development program, code named TUBE ALLOYS, within the British government’s Department of

252 The measure of the probability of interaction between small particles resulting in a nuclear reaction. Measured in BARNS, a unit of area equal to 10-28 m2, which is approximately the cross-sectional area of a uranium nucleus. 253 The Deuxième Bureau had been “lent” 185 kg of heavy water by the managing director of the Vemork plant to prevent it from falling into Nazi possession. 254 Atomic Archive (1998) “MAUD Report”; http://www.atomicarchive.com/Docs/Begin/MAUD.shtml

139 Scientific and Industrial Research, and led by Wallace Akers, the research director of the company Imperial Chemical Industries. Work immediately began on determining how best to increase (“enrich”) the 0.7-percent 235U from natural uranium, with gaseous diffusion (255) of UF6 being the methodology chosen. Tube Alloys demonstrated the feasibility of this approach in 1940, and after a prototype run using four gasifiers the following year, by mid-1943 ICI had constructed a pilot plant producing up to 100 kg of

UF6 per day.

Tube Alloys also was researching, at Cambridge University, ways to utilize the recently discovered element plutonium (256) and, independent of the UC-Berkley work, developed a similar technique to produce 239Pu as a second fissile material to use in a weapon. With this discovery, the British government decided to relocate the Cambridge team to Canada for security reasons.

In September 1940, Tizard led a delegation (the “British Technical and Scientific

Mission,” or “Tizard Mission”) of senior military officers and scientists to the U.S. to exchange various scientific and technical advances (257) the British had developed for necessary industrial resources. Among the information Tizard shared during this mission

255 Gaseous diffusion utilizes Graham's Law of diffusion, formulated by Scottish physical chemist Thomas Graham in 1848, by which gases diffuse through porous materials at rates determined by their molecular mass. 256 First claimed by Fermi in 1934, the substance he named hesperium was actually a mixture of barium, krypton and other elements. Plutonium (238Pu) was first produced and isolated on December 14, 1940, and chemically identified on February 23, 1941, by Glenn Seaborg, Edwin McMillan, Joseph Kennedy, and Arthur Wahl at the Berkeley Radiation Laboratory at the University of California, Berkeley; however, the publication of this discovery was delayed until after WWII due to security concerns. 257 The Tizard Mission also shared information on British advances in radar, proximity fuses, jet engine and rocket designs, superchargers, gyroscopic gunsights, submarine detection devices, self-sealing fuel tanks, and plastic explosives. Zimmerman (1996) Top Secret Exchange: The Tizard Mission and the Scientific War; McGill-Queen's Press; pp. 99-120

140 was the Frisch-Peierls Report about the possibility of creating a nuclear weapon, which he discussed with Enrico Fermi at Columbia University; however, Fermi was skeptical about the possibility of using nuclear fission for weapons, especially since at this time he and Szilárd were collaborating on designing a nuclear reactor with the goal of producing usable energy (258), (259).

Following the Tizard Mission, and even though the British government continued to share the results of the MAUD Committee’s findings with its U.S. government counterparts, the British realized that the U.S. government was assigning a lower priority to nuclear research than were the British. On August 5, 1941, Oliphant was dispatched to the U.S. to shore up cooperation and to encourage a renewed focus on the development of nuclear weapons to counter possible German ones; however, when he met with Briggs in

Washington, DC, he discovered that Briggs had not shared the MAUD reports with the members of the Uranium Committee.

On October 3, 1941, the official MAUD reports (260) were delivered to Office for

Scientific Research and Development (OSRD) Director Vannevar Bush, who briefed

President Roosevelt on their conclusions six days later. Similar to Churchill’s concern

258 Fermi had met with the U.S. Department of the Navy on March 18, 1939, to discuss the future uses of nuclear energy, and the Navy provided a small amount of funding (1939$1,500, equivalent to about 2019$27,500) for Fermi to continue his research into developing a working nuclear reactor. 259 Tizard, following his U.S. mission and not yet recognizing that a nuclear weapon was feasible, recommended that the British government also support research into nuclear energy for possible post-war use; as a result, Canadian nuclear physicist George Laurence, who had started similar research several months before Fermi did, was included in the Tube Alloy work. 260 The British had provided a draft copy to Bush on July 15, 1941, but he elected to not take any action until the report was finalized.

141 over a presumptive Nazi nuclear weapons program (261), and with assurance from his U.K. counterparts regarding the necessity of being the first to develop nuclear weapons,

Roosevelt approved escalating the U.S.’s effort into researching and developing these weapons, and placed control of this effort under the recently created OSRD, a civilian agency Roosevelt created to coordinate scientific research and development for defense purposes, where this effort was code-named S-1 to obfuscate any involvement in nuclear research. OSRD proceeded to conduct an accelerated research program to determine the feasibility of such weapons, and to develop the necessary proof-of-concept prototype facilities to establish the possibility of being able to enrich uranium to weapons-grade levels, and to determine if the newly discovered element, plutonium, could be utilized.

261 The Shōwa Empire of Japan also had a small-scale nuclear weapons program, headed by Yoshio Nishina, who had established a Nuclear Research Laboratory to study high-energy physics in 1931 at the RIKEN Institute (Institute for Physical and Chemical Research). Nishina, recognizing the military potential of nuclear weapons, especially if the Allies developed them first, proposed starting a nuclear weapons program to the Japanese Army in 1939; however, it wasn't until April 1941 that the Army Minister approved the research, coincident with research that the Imperial Japanese Navy's Technology Research Institute was engaged in. Similar to the U.K.'s MAUD Committee, the Committee on Research in the Application of Nuclear Physics, chaired by Nishina, was established to oversee the research. Its 1943 report concluded that while such a weapon was feasible, "it would probably be difficult even for the United States to realize the application of atomic power during the war." The Japanese Army, in collaboration with Nazi efforts, opted to continue, establishing the Ni-Go Project to separate 235U by thermal diffusion; however, the separator project was destroyed in March 1945 by Allied bombing. The Japanese Navy established a separate program, the F-Go Project, led by Bunsaku Arakatsu, to separate 235U by centrifuge, but this effort floundered due to a lack of resources. Grunden, Walker, Yamazaki (2005) "Wartime Nuclear Weapons Research in Germany and Japan"; Osiris, 2nd Series, Vol. 20, Politics and Science in Wartime: Comparative International Perspectives on the Kaiser Wilhelm Institute. (2005), pp. 107-130.

142 By June of 1942, Bush was convinced both that nuclear weapons could be produced, and that Nazi Germany was ahead of the Allied effort (262), (263). Based on Bush’s recommendations, Roosevelt authorized an unprecedented effort, and directed that the

U.S. Army Corps of Engineers (USACE), due to the USACE’s extensive experience with large construction projects, be brought in to coordinate the work of constructing the requisite facilities needed to produce such weapons. Initially headquartered in New York

City, near the scientific work being done at Columbia University, as well as the headquarters of major industrial contractors that would be used in most of this effort, this effort received yet another code-name, the “Manhattan Engineer District,” which became the “Manhattan Project” (264). While primarily an Anglo-American effort, the Manhattan

262 The Allies refer to those States allied in opposition to the Tripartite Pact (“Axis”) States of, primarily, Nazi Germany, Fascist Italy, and the Shōwa Empire of Japan in World War II. The alliance was formalized with the signing by 47 national governments between 1942 and 1945 of the Declaration by United Nations treaty, with the U.S., the U.K., the U.S.S.R., and what was then known as the Republic of China and is now the PRC, as the recognized “Big Four” powers leading Allied strategy, with Free France, the French government-in-exile, a key partner. 263 The perception of Nazi Germany’s ability to develop a nuclear weapon was much greater than the reality, as found by members of the Alsos Mission, a unit of the Manhattan Project formed in 1943 following the Allied invasion of Italy and tasked with following Allied troops in order to investigate the Nazi’s nuclear weapons program – Uranprojekt (informally Uranverein, Uranium Society or Uranium Club) – and to obtain associated material, documents, and personnel. Physicist Samuel Goudsmit, Alsos’ scientific lead, wrote: “It was so obvious the whole German uranium set up was on a ludicrously small scale. Here was the central group of laboratories, and all it amounted to was a little underground cave, a wing of a small textile factory, a few rooms in an old brewery. To be sure, the laboratories were well-equipped, but compared to what we were doing in the United States it was still small-time stuff. Sometimes we wondered if our government had not spent more money on our intelligence mission than the Germans had spent on their whole project.” (Goudsmit, 1947; pg. 109) 264 “Manhattan Project” is the popular name of the 1942-1946 Allies research and development effort undertaken to develop a nuclear weapon ahead of the presumptive effort underway by Nazi Germany, i.e., Uranprojekt. Approved by President Franklin D. Roosevelt on October 9, 1941, the USACE’s portion of what was initially called the “Development of Substitute Materials” project was renamed “Manhattan Engineering District” to maintain secrecy, and the entire project eventually became known as the “Manhattan Project.” Under the terms of the Quebec Agreement, signed by Churchill and Roosevelt on August 19, 1943, the U.K.’s “Tube Alloys” was subsumed into the U.S.’s “Manhattan Project.” Many preeminent scientists from the U.S. and the U.K., as well as expatriated

143 Project subsumed the U.K.’s Tube Alloy program and ultimately incorporated a large number of the expatriated European nuclear scientists who had escaped the Nazis (265).

The Manhattan Project built the first man-made (266) reactor, Chicago Pile 1 (CP-1), in

1942 under the west viewing stands of the original Stagg Field at the University of

Chicago. A proof-of-concept experiment to demonstrate that a self-sustaining nuclear chain reaction could be achieved and readily controlled, CP-1 reached initial criticality on

December 2, 1942. It was subsequently disassembled and re-assembled at Argonne,

Illinois, in March 1943, where it was renamed CP-2 and operated until it (and CP-3, the first heavy water reactor, used for physics research) was shut down and decommissioned in 1954 (267). The various Manhattan Project reactors were designed and operated to create fissile materials needed to build nuclear weapons, and most continued to be

scientists from various European States who had emigrated or otherwise escaped prior to the start of World War II, were involved in this effort. It resulted in the development of two different fission-type nuclear weapons less than four years later – the uranium-fueled Little Boy gun-type weapon that detonated over Hiroshima on August 6, 1945, and the plutonium-fueled Fat Man implosion-type weapon that detonated over Nagasaki on August 9, 1945. An excellent history of the Manhattan Project would be Richard Rhodes’ 1986 Pultizer Prize winning The Making of the Atomic Bomb (New York: Simon & Schuster). 265 Besides Einstein, Fermi, Szilárd, Peierls, and Fermi, other notable refugee European scientists involved in the Manhattan Project were Hans Bethe, James Franck, Klaus Fuchs, Edward Teller, and John von Neumann. 266 Nuclear “reactors” occur naturally. Approximately 1.7 billion years ago, a deposit of uranium ore with an unusually rich concentration of the isotope 235U, was periodically inundated with groundwater, which moderated, i.e., slowed down, the neutrons created from the normal decay of the uranium sufficiently to create intermittent chain reactions, somewhat akin to how geysers operate. It is estimated that this natural “reactor” was in existence for several hundred thousand years near what is now Oklo, Gabon. Meshik (January 26, 2009) “The Workings of an Ancient Nuclear Reactor”, Scientific American, https://www.scientificamerican.com/article/ancient-nuclear-reactor/ 267 Some of the graphite from CP-1/CP-2 were reused in the Transient Reactor Test Facility (TREAT) in Idaho. High- level nuclear waste, including the fuel and heavy water, were disposed of at Oak Ridge, Tennessee; and, the remaining CP-2/CP-3 material was encased in concrete and buried in what is now known as the Site A/Plot M Disposal Site., which is marked by a commemorative boulder. Forest Preserves of Cook County (2013) “Site A” at Red Gate Woods & The World’s First Nuclear Reactor, https://fpdcc.com/site-a-the-worlds-first-nuclear-reactor/

144 utilized throughout the subsequent Cold War period (1945-1991) by the U.S. Atomic

Energy Commission (USAEC) and its successor agency, the U.S. Department of Energy

(USDOE). Other notable Manhattan Project reactors included the heavy-water- moderated CP-3 research reactor, constructed at Argonne, which went critical on May 15,

1944; the X-10 Graphite Reactor, the first reactor designed and built for continuous operation in order to produce plutonium, which was constructed at Oak Ridge,

Tennessee, and went critical in November 1943; the B Reactor, constructed at Hanford,

Washington, which went critical in September 1944 and operated until 1968 producing plutonium; and, the D Reactor, constructed at Hanford for plutonium production, which went critical in December 1944 and operated until June 1967 (see Figure 2-2). Following the end of World War II, the USAEC assumed control of the Manhattan Project sites and of nuclear weapons development from the military with the passage of the Atomic Energy

Act of 1946 (268); however, the U.S. military continued to research and develop nuclear technologies for powering vessels and bases (269).

268 The Atomic Energy Act of 1946 (McMahon Act), enacted August 1, 1946, is the enabling legislation that, effective January 1, 1947, created the U.S. Atomic Energy Commission (USAEC) as an independent civilian agency, and transferred nuclear weapons development and nuclear power management to the USAEC from the USACE. 269 While the various navies focused on powering their vessels, there was also an interest in being able to power remote military bases without having to rely on frequent expensive and vulnerable fossil fuel shipments. Office of the Deputy Administrator for Defense Programs (2001) Highly Enriched Uranium: Striking A Balance - A Historical Report On The United States Highly Enriched Uranium Production, Acquisition, And Utilization Activities From 1945 Through September 30, 1996 (Revision 1 (Redacted For Public Release) ed.), U.S. Department of Energy, National Nuclear Security Administration, https://fas.org/sgp/othergov/doe/heu/

145

Figure 2-2: Key Manhattan Project Facilities, Source: Wellerstein, 2019 (270)

2.2 Militarization of Nuclear Energy

As noted above, militaries, especially navies, recognized early on the potential advantages nuclear power offered (271), separate from the destructive power of weapons; as such, following the end of WWII, most of the militaries of the major Allied States created nuclear energy programs. Even though the Manhattan Project was organized and

270 “This map shows the geographic distribution of the several hundred sites that were operated as part of the Manhattan Project. They varied widely in size, type, and category. The three major sites (Hanford, Oak Ridge, and Los Alamos) have their circles artificially enlarged, as do the secondary sites of UC Berkeley, the University of Chicago, and the Trinity site. Blue indicates the site was of a directly military or governmental nature (or were wholly created by the government); orange indicates educational institutions; green indicates industrial sites and contractors.” Wellerstein (2019) “Manhattan Project”; Encyclopedia of the History of Science; Carnegie Mellon University; https://lps.library.cmu.edu/ETHOS/article/id/35/ 271 The Navies of the U.S., the U.K., and the Shōwa Empire funded, albeit at very low levels, research into the possibility of nuclear propulsion prior to the start of World War II.

146 led by the U.S. Army, it was the U.S. Navy that took the lead in making use of the power aspects of nuclear in the post-WWII period, with the U.S. Army and U.S. Air Force then following suit (272).

2.2.1 U.S. Navy Reactor Program

In December 1945, U.S. Navy Captain (later Admiral) Hyman G. Rickover (273), who came to be known as the “Father of the [U.S.] Nuclear Navy,” was assigned to oversee the development of a nuclear propulsion plant for destroyers. However, Rickover became a strong proponent of using nuclear energy to power submarines (274) over surface combatants and, in 1947, he took his arguments directly to the Chief of Naval Operations,

Fleet Admiral Chester Nimitz, who recommended Rickover’s proposal to the Secretary of the Navy, John L. Sullivan. With Sullivan's endorsement, Rickover was reassigned as the

Director of the Naval Reactors Branch in the Navy’s Bureau of Ships, where he oversaw the research, development, and construction of a variety of reactor designs for powering

U.S. Navy vessels. Rickover was in charge of the construction of the world's first

272 Historical information about the U.S. Army and Navy nuclear power programs can be found in Appendix D to: U.S. Department of Energy (2001) Highly Enriched Uranium: Striking A Balance. A Historical Report on the United States Highly Enriched Uranium Production, Acquisition, and Utilization Activities from 1945 through September 30, 1996; National Nuclear Security Administration, Office of the Deputy Administrator for Defense Programs, January 2001, Revision 1 (Redacted For Public Release) 273 An excellent biography of Admiral Rickover is Theodore Rockwell’s The Rickover Effect: The Inside Story of How Adm. Hyman Rickover Built the Nuclear Navy, Wiley, 1995, ISBN-10: 0471122963 In addition, a 1984 interview of Admiral Rickover by 60 Minutes correspondent Diane Sawyer can be viewed at https://www.youtube.com/watch?v=lpAWiqwSw-U. 274 American physicist Ross Gunn, who worked on thermal diffusion techniques for the Manhattan Project, recognized before WWII the possibility of using nuclear power for submarine propulsion, and presaged the possibility of firing ballistic missiles from submerged submarines in 1945. Gunn’s vision influenced Rickover.

147 nuclear-powered vessel, the USS Nautilus (SSN 571 (275)), which was commissioned in

1954; and, by 2017, the U.S. Navy had built and operated some 526 nuclear reactors of about 28 different designs (276), (277), spread across 219 nuclear-powered vessels and eight land-based prototypes (278). As of 2018, the U.S. continued to operate 70 nuclear-powered submarines and 11 nuclear-powered aircraft carriers (279), powered by 92 reactors (each

CVN has two reactors).

Until his retirement in 1982, Rickover oversaw every aspect of U.S. Navy nuclear power development, and installed a culture of close adherence to stringent safety standards, which provided the U.S. Navy with an enviable record of zero nuclear reactor

275 SSN: nuclear-powered fast attack submarine; SSBN: nuclear-powered ballistic missile submarine; SSGN: nuclear- powered cruise missile submarine 276 Each U.S. Navy reactor design is given a three-character designation consisting of a letter for the vessel type the reactor is designed for (“A”: aircraft carrier, “C”: cruiser, “D”: destroyer, “S”: submarine), a consecutive generation number, and a letter for vendor that designed the reactor (“B”: Bechtel, “C”: Combustion Engineering, “G”: General Electric, “W”: Westinghouse). 277 Although the U.S. Navy experimented with different types of reactor designs, the USS Seawolf (SSN-575) was the only vessel with a liquid-metal (sodium) cooled reactor (S2G). While this design was overall quieter and provided more power in a smaller volume than the pressurized water reactor design used by the USS Nautilus, owing to technical challenges with the design, all future U.S. Navy ships utilized PWR designs, which helped lock-in light- water technology for the commercial industry. 278 The prototypes were also used also for training operators, and were located at three facilities – Naval Reactors Facility near Idaho Falls, Idaho; Knolls Atomic Power Laboratory (Kesselring) in West Milton, New York; and, Nuclear Power Training Unit in Schenectady, New York. Eight prototypes for various surface and submarine ship classes, were built and operated, including A1W (USS Enterprise), D1G (USS Bainbridge), S1C (USS Tullibee), S1G (USS Seawolf), S1W (USS Nautilus), S3G (USS Triton), S5G (USS Narwhal), and S7G (Modifications and Additions to a Reactor Facility, “MARF”). The U.S. Navy phased out the NRF, Kesselring, and NPTU facilities and converted the USS Sam Rayburn (SSBN- 635), a James Madison-class fleet ballistic missile submarine, into a Moored Training Ship and re-designated it MTS-635 in 1989. In 1990, the USS Daniel Webster (SSBN-626), a Lafayette-class ballistic missile submarine, was re-designated MTS-626, and the Los Angeles-class attack submarines USS La Jolla (SSN-701) and USS San Francisco (SSN-711) are being converted to MTS’s. 279 U.S. active submarine fleet includes 14 Ohio-class SSBNs, 4 Ohio-conversion-class SSGNs, and 28 Los Angeles- class, three Seawolf-class, and 17 Virginia-class SSNs. The active surface fleet includes 10 Nimitz-class and one Gerald R. Ford-class CVNs, each with two reactors. Also included are the four Moored Training Ships.

148 accidents. It can be argued that the U.S. Navy nuclear power program was instrumental in the development of the U.S. commercial nuclear industry, including the USNRC, both from the perspectives of driving the development of the nuclear reactor technologies in common use (280), and as a training ground for the staffing of the U.S. nuclear industry and regulator (281).

2.2.2 U.S. Air Force Reactor Program

On May 28, 1946, the U.S. Army Air Forces (282) initiated the Nuclear Energy for the

Propulsion of Aircraft (NEPA) Project, which continued until May 1951, when the project was transferred to the joint USAEC/USAF Aircraft Nuclear Propulsion (ANP) program. Two research paths were funded: a Direct Air Cycle model, which was contracted to General Electric, and an Indirect Air Cycle, which was contracted to Pratt &

Whitney. Both concepts relied on using the heat of the reactor to power conventional jet engines, but the indirect cycle released less radioactive pollution. The ANP program modified a Convair B-36 “Peacemaker” bomber, designated the NB-36H “Crusader”

Nuclear Test Aircraft (NTA), to study shielding requirements in order to determine

280 There is the countervailing argument is that the U.S. Navy also forced an early technology lock-in for light-water reactor technology – which is arguably not the best choice, either economically or technically – due to Rickover’s decision to focus on LWR technologies for naval use. Cowan, Robin. “Nuclear Power Reactors: A Study in Technological Lock-In.” The Journal of Economic History, vol. 50, no. 3, 1990, pp. 541–567. JSTOR, www.jstor.org/stable/2122817. 281 Historically, about a quarter of the USNRC staff has been veterans, mostly from the U.S. Navy. 282 Antecedent to what became the U.S. Air Force (USAF) on September 18, 1947.

149 whether a nuclear aircraft (283) was feasible (284). The NTA flew 47 missions testing the operating reactor over West Texas and Southern New Mexico. Based on the disappointing results of the NTA, the nuclear aircraft program was abandoned in

1961 (285), (286).

283 Designated the Convair X-6, the proposed nuclear-powered bomber was envisioned to use a reactor to power engines modified to use nuclear energy as fuel, and be able to be on station for days or weeks. GE built three prototype engines (Heat Transfer Reactor Experiment, HTRE-1, -2, -3), and HTRE-2 and -3 are on display outside the Experimental Breeder Reactor I in Arco, Idaho. Pratt & Whitney Aircraft Reactor-1 was tested once in 1957. Comptroller General of the United States (1963). “Report to the Congress of the United States – Review of Manned Aircraft Nuclear Propulsion Program, Atomic Energy Commission and Department of Defense”; https://fas.org/nuke/space/anp-gao1963.pdf 284 The U.S.S.R. also researched nuclear-powered aircraft, developing the Letayushchaya Atomnaya Laboratoriya (Летающая Атомная Лаборатория, “flying atomic laboratory”). Analogous to the NB-36H, it used a modified Tupolev Tu-95 bomber aircraft, as a testbed, and flew some 40 test flight with a liquid-sodium cooled VVRL-lOO reactor from 1961 to 1969. Like the USAF ANP program, it was abandoned once other weapon systems became more reliable. Colon (2009) “Soviet Experimentation with Nuclear Powered Bombers”; The Aviation History On-Line Museum; http://www.aviation-history.com/articles/nuke-bombers.htm

285 The USAF began research in 1955 into a nuclear-powered intercontinental ballistic missile (ICBM) (PROJECT ROVER). The project was transferred in 1958 to the Space Nuclear Propulsion Office (SNPO), a joint agency of the USAEC and NASA, where it became part of NASA's Nuclear Engine for Rocket Vehicle Application (NERVA) project, researching nuclear rocket engines for space missions. Three reactor types were built: Kiwi (1955 to 1964), Phoebus (1964 to 1969), and Pewee (1969 to 1972), before the project was canceled in 1973. Robbins & Finger (1991) “An Historical Perspective of the NERVA Nuclear Rocket Engine Technology Program”; NASA Lewis Research Center, NASA; NASA Contractor Report 187154/AIAA-91-3451

286 The USAF and USAEC jointly researched nuclear-powered ramjet engines for use in cruise missiles (PROJECT PLUTO). Two experimental engines, “Tory-IIA” and “Tory-IIC,” were successfully tested for the proposed Supersonic Low-Altitude Missile (SLAM); however, the program was terminated in July 1964 by the Department of Defense and the State Department as “being too provocative.” Nevada National Security Site (2013) “Nevada National Security Site History: Project Pluto Factsheet”; https://www.nnss.gov/docs/fact_sheets/DOENV_763.pdf In 2018, the Russian Federation announced the development of the 9M730 Burevestnik (Буревестник; "Petrel", NATO reporting name: SSC-X-9 Skyfall), an experimental nuclear-powered, nuclear-armed cruise missile. In August 2019, there was a suspected failure of a test of this missile, resulting in a release of radiation and the deaths of several scientists.

150 2.2.3 U.S. Army Reactor Program

The U.S. Army Nuclear Power Program (ANPP) was created by the Secretary of the

Army the year the USS Nautilus was launched. The ANPP was in response to a February

10, 1954, memo from the Secretary of Defense, which tasked the Army with the responsibility for “developing nuclear power plants to supply heat and electricity at remote and relatively inaccessible military installations.” The ANPP, as a “joint interagency activity” between the Department of the Army and the USAEC (who had statutory responsibility for nuclear-related R&D activities), designed and built eight reactors (287), including two gas-cooled reactors (288), six PWRs (289) (including SM-1, the

287 Each ANPP reactor design was given a three- or four-character designation consisting of a first letter for use (S: stationary, M: mobile, P: portable); second letter for power level (H: high-, M: medium-, or L: low-power); a digit for sequence; and, if field installation, a final “A”.

288 The GAS COOLED REACTOR EXPERIMENT (GCRE) was operated between 1959 and 1962 to obtain technical information about gas-cooled reactors.

The MOBIL LOW-POWER PLANT (ML-1) was operated between 1961 and 1965 to test an integrated reactor plant that could be was transported by road, rail, and barge. Both reactors were designed by Aerojet General Corporation and tested at the Idaho National Laboratory.

289 The 2.0-MWe STATIONARY MEDIUM-POWER PLANT (SM-1) was the first reactor developed under the ANPP, and was used primarily as a tri-service (Army, Navy, and Air Force) training facility for shore-based nuclear plant operators. It was the first U.S. nuclear power plant to be connected to an electrical grid, predating the commercial Shippingport NPP by several months. Located at Ft. Belvoir, Virginia, it operated from 1957 until 1975.

The 2.0-MWe plus heating PORTABLE MEDIUM-POWER PLANT (PM-2A) was designed to demonstrate the ability to assemble an NPP from prefabricated components in a remote, arctic location, and operated from 1960 until 1964 in Camp Century, Greenland; however, while Camp Century was purportedly a scientific research station, it was actually a cover for PROJECT ICEWORM, which was intended to determine the feasibility of installing nuclear missiles inside ice-sheets.

The 2.0-MWe plus heating STATIONARY MEDIUM-POWER PLANT (SM-1A) at Ft. Greely, Alaska, was the first field facility developed under the ANPP to demonstrate construction techniques for a remote, arctic location. It operated from 1962 until 1972. The 1.25-MWe Portable Medium-Power Plant (PM-1) was operated by the U.S. Air Force and provided electric power to the North American Air Defense Command’s (NORAD) 731st Radar Squadron in Sundance, Wyoming, between 1962 and 1968. The fuel from the second core was sent to PM-3A.

151 first reactor to be connected to an electrical grid on April 29, 1957, and MH-1A, the first floating nuclear power station), and one BWR (290). Budget cutbacks led the USAEC to phase out its support of the ANPP, and the last class of ANPP operators graduated in

1977, following the decision to end the ANPP.

2.2.4 Global Military Nuclear Reactor Programs

By the end of the Cold War in 1991, the U.S., U.S.S.R./Russian Federation, U.K.,

France, and PRC, had over 400 nuclear-powered submarines, and approximately 30 nuclear-powered surface combatants, in operation or in construction. However, following the end of the Cold War, well over half of these submarines and surface ships were subsequently scrapped or cancelled (291). All States possessing nuclear

The 1.75-MWe PORTABLE MEDIUM POWER PLANT (PM-3A), operated between 1962 and 1972, provide electricity, steam heating, and desalinated water to the Naval Air Facility at McMurdo Sound, Antarctica.

The MOBILE HIGH-POWER PLANT (MH-1A) was built in Sturgis (a converted Liberty ship formerly known as SS Charles H. Cugle, hull number 3145), and moored at Gatun Lake in the Panama Canal, where it supplied 10- MWe to the Panama Canal Zone from October 1968 to 1975. It should be noted that MH-1A was the first purpose- built floating NPP. The SM-1, SM-1A, and PM-2A were designed by ALCO Products (formerly the American Locomotive Company). The MH-1A was designed by the Martin Marietta Corporation. PM-1 and PM-3A were designed by the Martin Company.

290 The 200-kWe, 400 kWt, STATIONARY, LOW-POWER REACTOR, PROTOTYPE #1 (SL-1) was intended to power NORAD’s Distant Early Warning (DEW line) radar stations. Designed by Argonne National Laboratory to gain experience in BWR operations and to train military crews, it achieved criticality on August 11, 1958. 291 A particularly valuable resource for this section was developed by Peter Lobner, who compiled a document to support a presentation made commemorating the 60th anniversary of the world’s first “underway on nuclear power” by USS Nautilus on 17 January 1955. His “Marine Nuclear Power: 1939–2018” can be accessed at: https://lynceans.org/all-posts/marine-nuclear-power-1939-2018/.

152 weapons (292), (293) have a military nuclear energy program (294). Further, since a military nuclear energy program requires the capability to produce highly enriched nuclear fuel, all States that have, or are pursuing, a military nuclear energy program, have or will have the capability to construct nuclear weapons (295).

On August 9, 1957, the U.S.S.R. launched its first nuclear-powered warship, the submarine Leninsky Komsomol (Ленинский Комсомол, K-3), with dual 70-MW VM-A reactors. As of 2018, the U.S.S.R., and its successor State, the Russian Federation, eventually developed and operated approximately 248 nuclear-powered submarines

(more than the number of nuclear submarines built and operated by all other States

292 NPT-designated Nuclear Weapon States include the U.S., U.K., France, Russian Federation, and the People’s Republic of China. Other States that have acknowledged having nuclear weapons are India, Pakistan, and the Democratic People's Republic of [North] Korea. Israel is presumed to have nuclear weapons. In addition, five NATO members (Belgium, Germany, Italy, the Netherlands, and Turkey) are “nuclear sharing” States, hosting nuclear weapons supplied by the U.S., the U.K., and France. The former U.S.S.R. republics of Belarus, Kazakhstan, and Ukraine, possessed nuclear weapons, but repatriated their stockpile to the Russian Federation following the collapse of the U.S.S.R. 293 While this dissertation is not focused on nuclear weapons, it is worth noting that, by some estimates, in 2017 there were about 4,000 nuclear weapons operationally available globally, of which about 1,800 were maintained on high alert (i.e., ready for use on short notice). Another approximately 5,400 were stored in military arsenals, and about 5,600 weapons had been retired and were awaiting dismantlement. These weapons were located at some 107 sites in 14 countries, with the U.S. and the Russian Federation possessing about 93-percent of the total inventory. However, this is a significant reduction from the peak inventory level of 64,449 nuclear weapons in 1986, when the U.S. 23,317 warheads and the U.S.S.R. had 40,159. Kristensen & Norris (2017) “Worldwide deployments of nuclear weapons, 2017”; Bulletin of the Atomic Scientists, 73:5, 289-297 294 Both Pakistan and the DPRK are actively pursuing the development of nuclear-powered submarines. Mian, Ramana, Nayyar (2019) “Nuclear Submarines in South Asia: New Risks and Dangers”, Journal for Peace and Nuclear Disarmament, 2:1, 184-202 Murooka & Akutsu (2017) “The Korean Peninsula: North Korea’s Growing Nuclear and Missile Threat and South Korea’s Anguish”; East Asian Strategic Review 2017, 103-129 295 While South Africa is the only State to have developed nuclear weapons, and then voluntarily dismantled its nuclear weapons program, a number of other States have had, or are considering, nuclear weapons programs. Of particular concern are the suspected nuclear weapons programs in Algeria, Syria, Nigeria, and Indonesia. Institute for Science and International Security (2019) “Nuclear Weapons Programs Worldwide: An Historical Overview”; http://isis-online.org/nuclear-weapons-programs

153 combined), five nuclear-powered surface vessels (including the command ship Ural,

SSV-33, and four Kirov-class battlecruisers), and nine nuclear-powered icebreakers.

Between 1950 and 2003, the U.S.S.R./Russian Federation fielded some 468 naval reactors, using about 28 designs developed by the Rosatom subsidiary OKBM Afrikantov.

As of 2018, the Russian Federation Navy continues to operate 38 nuclear-powered submarines (296) and two Kirov-class battlecruisers.

The U.K. developed its military nuclear power program with extensive assistance from the U.S. On October 21, 1960, the U.K.’s Royal Navy launched its first nuclear- powered warship, the SSN HMS Dreadnought (S-101), using an imported U.S. Navy

Skipjack-class S5W reactor to power the vessel. The first U.K.-indigenous-built reactor,

Rolls-Royce’s PWR-1, powered the HMS Valiant (S102) when it was launched in 1963.

Between 1960 and 2018, the U.K. commissioned some 37 nuclear-powered submarines using three designs developed by Roll-Royce, and is presently operating 10 nuclear- powered submarines (297).

France's Marine Nationale commissioned its first nuclear-powered warship, the Sous-

Marin Nucléaire Lanceur d'Engins (“Device-Launching Nuclear Submarine,” an SSBN)

Le Redoutable (S 611), on December 1, 1971, which was powered by an 83-MW

PWR/SNLE designed and built by Technicatome (now Areva TA). Between 1971 and

2018, France commissioned one aircraft carrier (Charles de Gaulle, R91) and 19

296 Russian Federation active submarine fleet includes two Delta III-class SSBNs, six Delta IV-class SSBNs, three Borei-class SSBNs, one Typhoon-class SSBN; seven Oscar-class SSGNs; three Victor III-class SSNs, one Yasen- class SSN, four Sierra-class SSNs, ten Akula-class SSNs, and three special purpose submarines. 297 U.K. Royal Navy active submarine fleet includes four Vanguard-class SSBNs, and three Trafalgar-class and three Astute-class SSNs.

154 submarines, using four reactor designs developed by Areva TA; and, is presently operating 10 nuclear-powered submarines (298) and the Charles de Gaulle.

The People’s Republic of China (PRC) began its naval nuclear power program in

1958 (299), and the People's Liberation Army Navy Submarine Force launched the first indigenously produced nuclear-powered warship in Asia in 1970 with the Type 091 Han- class Long March I SSN. While data are sparse on the PRC military, it is believed that the PRC has three active Han-class SSNs, six Shang-class Type 093/093G SSN/SSGNs, one Xia-class Type 092 SSBN (commissioned in 1987), and four Jin-class Type 094

SSBNs. (Lobner, 2015)

In 2012, the Indian Navy leased the Russian Federation K-152 Nerpa, an Akula-class

SSN, and rechristened it the INS Chakra II (300). The first Indian-built nuclear-powered warship was the INS Arihant (301), launched on July 26, 2009, as the lead ship of a planned four SSBN/SSGN submarines.

298 France's Marine Nationale active submarine fleet includes four Triomphant-class SSBNs and six Rubis-class SSNs. 299 In 1950, the PRC established the China Institute of Atomic Energy (CIAE) to conduct research in nuclear physics, nuclear engineering, radiochemistry, and in the development of nuclear technologies. On January 15, 1955, Chairman Mao Tse-Tung approved research into the development of nuclear weapons. Jersild (2013) “Sharing the Bomb among Friends: The Dilemmas of Sino-Soviet Strategic Cooperation”; Wilson Center Cold War International History Project, https://www.wilsoncenter.org/publication/sharing-the- bomb-among-friends-the-dilemmas-sino-soviet-strategic-cooperation 300 This was actually the second submarine leased to India. The first, K-43, was a Charlie I-class SSN leased from 1988 to 1991 by the then U.S.S.R. to the Indian Navy, where it served as the INS Chakra. This lease provide the Indian Navy with critical expertise that they utilized to build their indigenous Arihant-class. However, it should be noted that the K-43/Chakra retained a Soviet crew, who reportedly did not allow Indian sailors access to the reactor compartment. Defense News (8 March 2019) “India signs $3 billion contract with Russia for lease of a nuclear submarine”; https://www.defensenews.com/global/asia-pacific/2019/03/08/india-signs-3-billion-contract-with-russia-for- lease-of-a-nuclear-submarine/ 301 “Arihant” is Sanskrit for “Slayer of Enemies.”

155 It should also be noted that, as part of the strategic partnership signed between Brazil and France, the Brazilian Navy is currently constructing the Álvaro Alberto (SN-10), an

SSN based on the conventionally-powered French Scorpène-class attack submarine, using a 48-MW PWR developed by Brazil’s Electronuclear Energy Generation

Laboratory (LABGENE) (302).

The importance of the various military nuclear power programs is not to be undervalued – each of these programs provide invaluable research and support to civilian uses, as a positive aspect of the “dual-use” facet of nuclear technologies, and have provided a trained cadre of operators, researchers, and technicians who were able to cross between the military and commercial sides of nuclear energy utilization, using their skills and expertise to advance both.

2.3 Nuclear Proliferation Concerns

Since the birth of the Nuclear Age was heralded by the flame and destruction of nuclear weapons, there is a continuing conflation of nuclear weapons and nuclear energy.

One reason for this misapprehension of the two very distinct uses of nuclear science by the general public and, to a large extent, policy makers, is that the expertise and equipment used to develop a nuclear energy program, especially a military nuclear

302 “The Brazilian nuclear-powered submarine will add a new dimension to the State’s naval power. ‘Thanks to its mobility and autonomy, the nuclear-powered submarine can monitor distant maritime areas, fulfilling Brazilian’s interests to protect its vast continental platform and deter hostile pursuits,’ MB’s Social Communication Center pointed out.” Diálogo (7 August 2018) “Brazilian Navy’s Nuclear Submarine Shows Progress”; https://dialogo- americas.com/en/articles/brazilian-navys-nuclear-submarine-shows-progress

156 energy program, can also be utilized to create the necessary materials used in nuclear weapons, hence its dual-use classification.

All States that possess the capability to enrich and reprocess nuclear fuel also have a necessary, if not sufficient, ingredient for the construction of nuclear weapons – enriched fissile materials. In addition to the States that have declared possession of nuclear weapons, at least five other States presently operate enrichment and/or reprocessing facilities (303).

Moreover, the Manhattan Project proved resoundingly to one and all that constructing a nuclear weapon could be done, and the necessary knowledge – at least of the physics – was, and continues to be, reasonably easy to obtain. Indeed, the theoretical design of a crude nuclear weapon is relatively accessible to anyone with an undergraduate-level knowledge of physics and chemistry. Moreover, the basics of nuclear weapon design is readily available to anyone with access to the internet. This was demonstrated in the pre- internet timeframe (1964-1967) by the Lawrence Livermore National Laboratory, when three physics post-doctoral researchers attempted to design a nuclear weapon using only

303 The States that operate nuclear fuel enrichment and/or reprocessing facilities are Argentina, Brazil, PRC, France†, Germany, India, Iran, Japan, the Netherlands, DPRK, Pakistan, Russia, U.K., and U.S. † Belgium, Iran, Italy, and Spain each have about a 10-percent investment share in the French Eurodif enrichment plant. Australia is developing enrichment capabilities, while South Africa no longer operates its facility. Israel is suspected of having enrichment capabilities. WNA (2018) Uranium Enrichment; http://www.world-nuclear.org/information-library/nuclear-fuel- cycle/conversion-enrichment-and-fabrication/uranium-enrichment.aspx

157 open-source information (304). Their design was constructed and tested, producing an explosion on the order of “Little Boy’s,” i.e., 16kT (305), (306) (Frank, 1967).

During and following the Manhattan Project, spies – especially those affiliated with the U.S.S.R. – were able to obtain sufficient information to guide their respective State’s nuclear programs so as to avoid blind alleys and unproductive approaches, which allowed the U.S.S.R. to begin testing its own nuclear weapons only four years after the U.S. Army

Air Corps’ 393rd Bombardment Squadron dropped nuclear weapons on Hiroshima on

August 6, 1945 (“Little Boy”), and on Nagasaki on August 9, 1945 (“Fat Man”) (307), (308).

Additional help in proliferating nuclear technologies was provided by repatriated

304 Open source information is non-classified materials that are available to the general public. 305 It should be noted that possessing the knowledge and requisite fissile materials are necessary, but doesn’t equate to being able to actually build a workable nuclear weapon, as has been demonstrated by North Korea’s continuing struggle to consistently produce reliable and deliverable nuclear weapons. However, so called “dirty bombs” are quite simple to construct, since they are conventional explosives laced with radioactive materials, and are intended to invoke general panic by spreading contamination over the local area impacted by the explosion. While more a weapon of terror as opposed to being a Weapon of Mass Destruction, these devices could cause significant public fear and economic consequences well beyond that of a regular explosive. 306 Nuclear weapon yields, i.e., explosive power, is typically measured in kilo-tonne (kT, thousand metric tonnes) or mega-tonne (MT, million metric tonnes) equivalencies of trinitrotoluene (TNT). One kT is about 4.2 gigajoules (GJ); and, a gigajoule is equal to 277.8 kilowatt hours (kWh). 307 The decision on the U.S.’s use of nuclear weapons is still being debated, but not in this dissertation. 308 RDS-1, code-named Первая молния (“First Lightning”) or “Joe-1” by the U.S., the first nuclear weapon the U.S.S.R. tested on August 29, 1949, was very similar to the original U.S. “Fat Man” design.

158 Manhattan Project scientists from the U.K. (309) and France (310) when they returned to their home States following the end of World War II (311).

2.3.1 Safeguards versus Development

The question faced by the U.S. at the end of World War II in 1945, as the only State then with nuclear weapons, was how to ensure that future applications of nuclear science and technologies would not cascade into an out-of-control arms race as other States sought to develop their own nuclear weapons programs, perhaps under the guise of a commercial nuclear energy program(312), (313). Fears of nuclear proliferation resulted in

309 In 1946, the U.K. established the Atomic Energy Research Establishment (AERE, or Harwell Laboratory) as its primary military and civilian atomic energy research and development facility. William Penney, the head of the British contingent to the Manhattan Project, directed the U.K.’s nuclear weapons research program (“High Explosive Research”), which tested the first British nuclear weapon (“Operation Hurricane”) in 1952. 310 Bertrand Goldschmidt, the father of the French atomic bomb, was the only French citizen allowed on the Manhattan Project as part of Enrico Fermi’s team that developed Chicago Pile 1. Afterwards, he helped develop Canada’s first nuclear reactor (ZEEP), and then returned to France in 1946 to found the French Atomic Energy Commission, where he oversaw the following year the construction of the EL-1 Zoé reactor (Zéro de puissance (zero power), Oxyde d'uranium (uranium oxide), Eau lourde (heavy water)), France’s first reactor, which supplied the initial material for France’s nuclear weapons arsenal. 311 Holmes (2009) “Spies Who Spilled Atomic Bomb Secrets”; Smithsonian Magazine; http://www.smithsonianmag.com/history-archaeology/Spies-Who-Spilled-Atomic-Bomb-Secrets.html 312 The ability to subvert nominally civilian nuclear energy programs into supplying the necessary materials for nuclear weapons was illustrated by the French nuclear energy program in the post-WWII period. The Provisional Government of the French Republic (GPRF) created the Commissariat à l'Énergie Atomique (CEA) in 1945 to, among other things, conduct fundamental and applied research into the design of nuclear reactors and weapons. In conjunction with the secret Committee for the Military Applications of Atomic Energy, which was empaneled in 1956, the French used its Zoé reactor to produce plutonium for its nuclear weapons program (originally known as Force de Frappe – “strike force”), and tested its first nuclear weapon in 1960. The first French commercial NPP began commercial operation in 1962. 313 Other examples of nuclear weapons programs that were covered by the fig leaf of a nuclear energy program would include the 1945 establishment of India’s Tata Institute of Fundamental Research; the 1948 establishment of the South African Atomic Energy Corporation; the 1951 agreement between the U.S.S.R. and China that led to cooperation on nuclear weapons development; the 1956 establishment of the Pakistan Atomic Energy Commission; the 1961 construction of a plutonium-separation plant adjacent to Israel’s French-built Dimona research reactor; and, the covert nuclear weapons research programs of Argentina and Brazil in the 1970’s and 1980’s.

159 the recognition, first by the Truman Administration, that in order to counteract massive proliferation of such weapons of mass destruction, there was – and I assert that there continues to be – a need for an autonomous, technically-competent, open and transparent international nuclear regulatory organization that would be able to both provide safety and security regulatory standards that are utilized globally, and that would be authorized to oversee – and sanction as required – subscribing national nuclear energy programs.

This idea has been resurrected several times over the past 70 years, but there was always some (usually realpolitik) hurdle that the proposal couldn’t quite overcome.

However, just as fire and water can either destroy or sustain, it was argued – most publicly by President Eisenhower in his now famous “Atoms for Peace” speech to the

UN General Assembly in New York City on December 8, 1953 – that the peaceful applications of nuclear materials and science were not to be lightly ignored. While the tension between the constructive and destructive options has, and continues to, hindered the peaceful development of nuclear energy, even in more Developed States, nuclear technologies have continued to evolve and provide beneficial options. Moreover, it is vital that, because of the significant impacts from failures – man-made or natural – appropriate oversight is provided, especially in those States that have may not have the resources or the indigenous knowledge to safely and securely utilize these technologies.

160 2.3.2 Acheson-Lilienthal Report and the Baruch Plan

Shortly after the end of World War II, the U.S. and the U.K. (314) were in basic agreement that the control of nuclear materials should be under the auspices of an international organization; however, the U.S.S.R. distrusted such an organization, especially given the degree of control it would have over sovereign States. U.S.

President Harry S Truman, while distrustful of the U.S.S.R., nevertheless was more concerned with the potential consequences of a global nuclear arms race (315), as every

State would want both a deterrent to a neighboring adversary’s own atomic arsenal and their own nuclear sabers to rattle. Truman envisioned a world where any city could suffer the same fate as Hiroshima and Nagasaki, and was therefore willing to surrender control of nuclear technologies to a non-partisan global organization, such as the United

Nations’ (UN) Atomic Energy Commission (UNAEC), if by doing so it could be ensured that no other State would then be able to develop nuclear weapons that could threaten the

U.S. (Walker, 2007). To that end, Truman directed the development of a proposal that supported the empowerment of the UN to take on the oversight of nuclear materials and the future development of non-military nuclear technologies.

314 Even though the 1943 Quebec Agreement merged the U.K.’s “Tube Alloys” nuclear weapons research program into what became the Manhattan Project, the passage of the McMahon Act – which transferred control of nuclear research and development from the USACE to the newly-created USAEC – restricted access of nuclear information with other States, including the U.K. and France. This unilateral rescinding of the Quebec Agreement led directly to the U.K. and France each developing their own indigenous nuclear weapons and energy programs. 315 Truman was right to be worried – the U.S.S.R. first tested a nuclear weapon (“RDS-1”) in 1949, the U.K. in 1952 (“Hurricane”), France in 1960 (Gerboise Bleue, “blue jerboa”), China in 1964 (“596”), India in 1974 (Smiling Buddha), Pakistan in 1983 (Kirana-I) and North Korea in 2006. South Africa and Israel are suspected of jointly testing a nuclear weapon (Vela) in 1979.

161 The 1946 “Report on the International Control of Atomic Energy,” known as the

Acheson-Lilienthal Report after its lead authors, Dean Acheson, then Undersecretary of the U.S. Department of State, and David Lilienthal, then Chairman of the Tennessee

Valley Authority (TVA), was a study undertaken to determine which of two prevalent views at the time about the future control of nuclear sciences and technologies, and especially nuclear weapons, was the one that should be adopted as U.S. policy.

One side of this debate, led by then Secretary of War Henry Stimson, was the belief that the underlying science behind nuclear weapons could not be monopolized forever.

Stimson argued that negotiations to encourage the U.S.S.R. not to develop its own nuclear weapons, especially while the U.S. maintained its nuclear monopoly, would instead strongly encourage the U.S.S.R. (and other States) to develop their own nuclear weapons so as to restore the balance of power. Stimson’s opinion was bolstered by the disclosures provided by Igor Gouzenko, a cipher clerk in the Soviet embassy to Canada who defected three days after the end of World War II, who detailed the U.S.S.R.’s efforts to steal nuclear secrets.

Then Secretary of State James Byrnes, on the other hand, countered that the U.S. had earned this monopoly through its leadership in the Manhattan Project and the monopoly shouldn’t be surrendered. Byrnes felt that the only thing the leadership of the U.S.S.R. respected was strength, and the U.S.’s monopoly on nuclear weapons provided that strength. The U.K.’s Prime Minister, Winston Churchill, agreed with Byrnes, as demonstrated by a speech (316) where he said, “From what I have seen of our Russian

316 Winston Churchill, speech given in Fulton, Missouri, March 5, 1946

162 friends and Allies during the war, I am convinced that there is nothing they admire so much as strength, and there is nothing for which they have less respect than weakness, especially military weakness.”.

President Truman, while distrustful of the U.S.S.R. leadership, clearly sided with finding a workable path to control the misuse of nuclear technologies. This view was demonstrated by his administration’s support of the creation of the UN Atomic Energy

Commission (UNAEC) at the Conference of Foreign Ministers held in Moscow in

December 1945.

The UNAEC was founded on January 24, 1946, by UN General Assembly Resolution

1 “to deal with the problems raised by the discovery of atomic energy.” Specifically, the

UNAEC was tasked with making: “specific proposals: (a) for extending between all nations the exchange of basic scientific information for peaceful ends; (b) for control of atomic energy to the extent necessary to ensure its use only for peaceful purposes; (c) for the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction; (d) for effective safeguards by way of inspection and other means to protect complying States against the hazards of violations and evasions” (317).

To resolve the impasse between the views of Stimson and Byrnes, Truman appointed

Acheson as chair of a committee (318) to develop an official U.S. governmental policy on

317 The UNAEC was officially disbanded by the UN General Assembly UNAEC in 1952, but had been inactive since 1949, when the U.S.S.R. conducted its first nuclear weapon test. IAEA (1997) “IAEA Turns 40: Key Dates & Historical Developments,” Supplement to the IAEA Bulletin 318 Membership included James Conant, President of Harvard and Chairman of the National Defense Research Committee; Vannevar Bush, director of the Office of Scientific Research and Development; Assistant Secretary of

163 nuclear energy. The resulting Acheson-Lilienthal Report, delivered on March 16, 1946, proposed the creation of an Atomic Development Authority. The proposed ADA would have a global monopoly, independent of the UN and States, on virtually all areas of nuclear research and development which could lead to the production of nuclear weapons, including licensing and oversight of uranium mining and all nuclear facilities that could produce such weapons. Essentially, the proposed ADA would be given ownership of all radioactive materials and would control the release of these materials to individual States for peaceful uses.

The Acheson-Lilienthal Report also acknowledged the necessity of the U.S. destroying its nuclear arsenal after the ADA was operational, but made no mention of when, nor did it specify what enforcement authorities the ADA would have.

Unfortunately, the Acheson-Lilienthal committee members neglected to factor in realpolitik, in that the plan depended on the U.S.S.R., which was not yet a nuclear- weapons State, supporting a proposal that would have unilaterally left the U.S. as the world’s only possessor of nuclear weapons. Further, the report’s proposal to destroy the

U.S. nuclear arsenal was anathema to Byrnes’ faction (U.S. Department of State, 2018).

Subsequently, President Truman appointed Bernard Baruch, who had served as a special adviser to the Office of War Mobilization, as the U.S. Representative to the

UNAEC. On June 14, 1946, Baruch presented a modified version (“Baruch Plan”) of the proposals in the Acheson-Lilienthal report to the UNAEC, proposing international

War John McCloy; and, General Leslie Groves, the officer in charge of the Manhattan Project. David Lilienthal, chairman of the Tennessee Valley Authority, was chairman of the technical board of consultants, which included J. Robert Oppenheimer, scientific leader of the Manhattan Project.

164 control of nuclear materials and strict oversight of any associated research and development. Baruch’s proposal included specific penalties for violations of these restrictions, and included guidance on the destruction of any existing nuclear weapon stockpiles. Further, Baruch proposed that the ADA’s actions would not be subject to unilateral vetoes by any member of the UN Security Council, requiring instead a majority vote by all member States. The U.S.S.R. rejected the inspection clause of Baruch's plan (319), (320), arguing that the eradication of nuclear weapons prior to the establishment of a body with such overarching control and inspection authorities was nonnegotiable; as such, Baruch’s proposal died in a stalemate. Without a means to control the spread and use of these technologies, the subsequent nuclear arms race was as inevitable as the apocryphal falling of Newton’s apple.

Dimitri Skobel’tysn, a scientist with the U.S.S.R.’s delegation that rejected the

Baruch Plan, succinctly provided the underlying reasons why the Baruch Plan failed:

If the Baruch plan is accepted, then every independent activity in the development of atomic production in countries which have signed the agreement has to be curtailed and handed over to an international (in reality, probably, an American) organization. This international organization would then . . . proceed to control our resources. We reject such help and are determined to carry out by our own efforts all the research and preparatory work necessary for setting up atomic production in our country, as America did in the years of the war. (Gaddis, 1997 (321))

319 Nuclear Files (2018) “The Baruch Plan”; http://www.nuclearfiles.org/menu/key-issues/nuclear- weapons/issues/arms-control-disarmament/baruch-plan_1946-06-14.htm 320 Gerber (1982) “The Baruch Plan and the Origins of the Cold War”; Diplomatic History, Vol. 6 (1), pp. 69-96 321 Gaddis (1997) We Now Know: Rethinking Cold War History; Clarendon Press, Oxford, pg. 97

165 Skobel’tysn’s observation contains truths that help explain why subsequent proposals for tighter international control of nuclear materials were problematic. States that seek to develop nuclear weapons distrust that present and future enemies will not illicitly and clandestinely acquire such weapons. Therefore, an ADA-type agency would be an unacceptable affront to national sovereignty since no State can be sure that such an agency could remain non-partisan:

Of course, there is the countervailing argument in favor of proliferation that nuclear- armed States are less likely to be the target of militaristic opportunism (322), such as the

2014 annexation of Ukraine’s Crimean Peninsula by the Russian Federation. Upon the collapse of the U.S.S.R. in 1991, Ukraine had inherited the third-largest nuclear arsenal in the world, with more warheads than France, the PRC, and the U.K. combined. In addition, Ukraine had a scientific and military-industrial capacity that would have allowed it to become a fully-fledged nuclear weapons State in a relatively short time.

However, the new Ukrainian government renounced these weapons and, along with the former U.S.S.R. States of Belarus and Kazakhstan, opted to repatriate the nuclear weapons that had been stationed in their respective States to the Russian Federation for disposal (323). In return, Ukraine, Belarus, and Kazakhstan were provided security

322 Some foreign policy theorists contend that “more is better” since nuclear-armed States have historically utilized their nuclear arsenal capabilities to deter threats and preserve an uneasy peace, without actually having to use the weapons against military or civilian targets, just as the U.S. and U.S.S.R. did during the Cold War, and as India and Pakistan presently do in maintaining their armed détente. The strongest evidence for this argument is that there hasn’t been a nuclear weapon attack since August 9, 1945; however, it is also irrefutable that more nuclear-armed states implies a greater likelihood that eventually a miscalculation will occur and a regional – or perhaps even a global – nuclear exchange will ensue. (Waltz & Sagan, 2012) 323 This repatriation of former U.S.S.R. nuclear weapons to the Russian Federation was in accordance with the 1992 Lisbon Protocol to the 1991 Strategic Arms Reduction Treaty, in which the former Soviet Socialist Republics of

166 assurances (324) by the co-signers of the 1994 Memorandum on Security Assurances in

Connection with Ukraine’s Accession to the Treaty on the Nonproliferation of Nuclear

Weapons (1994 Budapest Memorandum). These signatories included the U.S., U.K., and

(ironically) the Russian Federation (325). However, following the 2014 invasion of the

Ukrainian territory of Crimea by the Russian Federation, the signatories to the 1994

Budapest Memorandum failed to meet their security pledges. Consequently, Ukrainian policy-makers have been reconsidering the wisdom of nuclear disarmament (Wall Street

Journal, 2014).

Further, since these security assurances were not honored, it is highly likely that

States like Iran may be more cautious about their long-term security needs. States may demand additional consideration for foregoing a nuclear weapons program, and States like the DPRK will be less likely to voluntarily reduce its nuclear arsenal absent more substantial assurances of its national security. Moreover, several nuclear-latent States, such as Japan and the Republic of Korea (326), have also been publicly reassessing the wisdom of foregoing their own nuclear weapons program due to regional security concerns from the People's Republic of China and the DPRK. However, to date, all signatories to the NPT are still committed to nuclear non-proliferation. The reluctance to

Belarus, Kazakhstan, and Ukraine agreed to either destroy or transfer to the Russian Federation, as the successor to the U.S.S.R., any Soviet-era nuclear weapons on their soil, and to join the NPT. 324 These assurances included pledges to respect these States’ territorial integrity and the inviolability of their borders, to abstain from economic coercion, and to refrain from threats of, or actual use of, force against the territorial integrity or political independence of these three States. 325 France and the PRC provided security assurances for Ukraine in separate documents. 326 The ROK commitment is becoming more fragile in light of their perception that the security guarantees made by the U.S. may not hold in the future. Lee (2019) “Don’t be surprised when South Korea wants nuclear weapons”; Union of Concerned Scientists, https://thebulletin.org/2019/10/dont-be-surprised-when-south-korea-wants-nuclear-weapons/

167 get into a new nuclear arms race can be seen by the commitments made during the third

Nuclear Security Summit, held March 24-25, 2014, in the Netherlands, where several

States, including Japan, pledged to reduce their stockpiles of weapons-grade nuclear materials (327).

2.3.3 Atoms for Peace

Seven years after the failure of the Baruch Plan, President Dwight D. Eisenhower gave his “Atoms for Peace” speech to the UN’s General Assembly on December 8, 1953.

In this speech, President Eisenhower pledged to solve “the fearful atomic dilemma” that nuclear weapons posed by repurposing nuclear research away from weapons development and towards more peaceful uses, including medical uses and energy. The

“Atoms for Peace” speech proposed the creation of an international Atomic Power

Authority (APA) with full transnational authority to ensure that illicit nuclear weapons programs were not being conducted. Instead, due to various concerns raised by other

States over national security concerns, a much more circumscribed agency, the

International Atomic Energy Agency (IAEA), was established in 1957 as the successor to the UN Atomic Energy Commission, which had been officially disbanded in 1952 (328). It

327 Arms Control Association (2018) “Nuclear Security Summit at a Glance”; https://www.armscontrol.org/factsheets/NuclearSecuritySummit As a side note – in my role as the Chair of the American Nuclear Society’s Nuclear Nonproliferation Policy Division, I participated in the fourth, and final, Nuclear Security Summit n 2016. 328 The UNAEC, which had been founded by the UN General Assembly’s Resolution 1 “to deal with the problems raised by the discovery of atomic energy,” had been tasked to make specific proposals: (a) for extending between all nations the exchange of basic scientific information for peaceful ends; (b) for control of atomic energy to the extent necessary to ensure its use only for peaceful purposes;

168 should be noted that the IAEA was created without the authority envisioned by

Eisenhower or by the UNAEC to prevent nuclear weapons proliferation, nor has the

IAEA subsequently been empowered with such authority, not even to deal with known proliferators like Iran, DPRK, or Pakistan.

Eisenhower also echoed in his 1953 speech several of the proposals from the

Acheson-Lilienthal Report and the Baruch Plan by recommending that the U.S. and the

U.S.S.R. would “make joint contributions from their stockpiles of normal uranium and fissionable materials” to a nuclear fuel bank (329) that the proposed Atomic Power

Authority would control. The APA would have been charged to “devise methods whereby this fissionable material would be allocated to serve the peaceful pursuits of mankind.” (330)

At the time of the “Atoms for Peace” speech, there were three States, i.e., U.S.,

U.S.S.R., and U.K., with nuclear weapons; as such, the speech was an attempt by the U.S. to control any further proliferation of nuclear weapon technologies and capabilities while

(c) for the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction; (d) for effective safeguards by way of inspection and other means to protect complying States against the hazards of violations and evasions. (UN General Assembly, 1946) Three separate reports were written by the UNAEC, finding that “an effective system for the control of atomic energy must be international, and must be established by an enforceable multilateral treaty or convention which in turn must be administered and operated by an international organ or agency within the United Nations, possessing adequate power and properly organized, staffed, and equipped for the purpose.” However, agreement was never reached on such a treaty or the recommended international agency. 329 The nuclear fuel bank concept is important since it removes the availability of a critical technology – enrichment – from States that wish to acquire nuclear energy technologies. Since enrichment capabilities are inherently dual use, by eliminating the need for a State to have an indigenous capability to enrich uranium, this will significantly mitigate the possibility of a State being able to develop nuclear weapons. 330 Arms Control Association (2018) “The Enduring Effects of Atoms for Peace”; https://www.armscontrol.org/act/2003_12/Lavoy

169 affirming that peaceful uses of nuclear materials was a worthy goal. However, the subsequent actions by the USAEC in support of this speech – a massive dissemination of nuclear technologies and materials world-wide, but without the accompanying legal and regulatory infrastructure of the ADA that would have been in place if the either the original Acheson-Lilienthal Report and subsequent Baruch Plan had been adopted, or if

Eisenhower’s own proposed APA had been created – undermined the whole rationale behind the “Atoms for Peace” speech. Instead of preventing the proliferation of nuclear weapons technology, the resultant USAEC “Atoms for Peace” program actually provided the spread of the necessary expertise and access to fissile materials which allowed several

States, e.g., Argentina, Brazil, India, Iran, Pakistan, South Africa, and perhaps Israel, to clandestinely develop their own nuclear weapons programs (331).

Presently, seven decades after the Baruch Plan was rejected, global governance of nuclear energy is no closer than it was then, and Eisenhower’s “Atoms for Peace” program can be classified as mixed (332), both a qualified failure and a qualified success.

331 It should be noted that South Africa is the first State to ever voluntarily end its nuclear weapons program and decommission the weapons it produced, as confirmed by an IAEA inspection in 1994. Argentina, Brazil, and Iran had nuclear weapons development programs which were outgrowths of the assistance they received from the USAEC’s “Atoms for Peace” program, but subsequently abandoned them. However, both Argentina and Brazil are working on naval nuclear propulsion capabilities and thus retain the technological infrastructure to resume nuclear weapons development. Iran, which had initially abandoned its nuclear weapons program in 1979 and signed the NPT, resumed its nuclear program in 1981; however, while in 2011 the IAEA concluded that Iran had research underway before 2003 to develop nuclear weapons capability, to date there is no conclusive evidence that Iran has achieved that capability. As noted in the above Footnote 28, the former Soviet republics of Belarus, Kazakhstan, and Ukraine repatriated nuclear weapons that had been within their borders following the 1991 dissolution of the U.S.S.R. to the Russian Federation and have signed the Nuclear Non-Proliferation Treaty. 332 “[M]odern interpretations fail, however, to recognize the Cold War context. Eisenhower was aware that peaceful nuclear cooperation posed potential proliferation risks. However, like many of his successors, the president viewed

170 “Atoms for Peace” could be considered a failure due to the consequential proliferation of nuclear technologies – especially in recipient States such as India, Iran, Israel, and

Pakistan, which diverted the U.S.’s nuclear assistance to military uses – without the sufficient safety and security oversight Eisenhower envisioned. Alternately, the “Atoms for Peace” program was a qualified success since there has not been the expected expansion in nuclear-armed States (333); and, the program led to most of the important elements of the current nuclear nonproliferation regime, including the creation of the

IAEA, the introduction of the nuclear safeguards concept, and the normalization of the concept of nuclear nonproliferation.

2.3.4 Nuclear Non-Proliferation Treaty

Among the proposals meant to minimize nuclear proliferation was the Treaty on the

Non-Proliferation of Nuclear Weapons, more commonly known as the “Nuclear Non-

the benefits of Atoms for Peace for the US-Soviet Cold War balance as higher-priority than any accompanying proliferation risks. Nonproliferation is but one of many -- often conflicting -- US national interests.” Varnum (2014) “60 Years of Atoms for Peace”; Nuclear Engineering International; https://www.neimagazine.com/features/feature60-years-of-atoms-for-peace-4164653/ “[T]he 1968 nuclear Nonproliferation Treaty can be seen as a refined, negotiated expression of Atoms for Peace and follow-on efforts by the Eisenhower administration.[27] Without doubt, the nuclear nonproliferation regime is imperfect, but it has managed to limit the possession of nuclear weapons to a single-digit number of states. Even more significant is the fact that not a single nuclear weapon has been employed as part of a military conflict since the Second World War. Considering the dire forecasts made in the 1950’s and 1960’s about the rapid international spread of nuclear arms and the likelihood of nuclear war,[28] these are outcomes that probably would have pleased Eisenhower and many of his presidential successors.” Lavoy (2003) “The Enduring Effects of Atoms for Peace”; Arms Control Association; https://www.armscontrol.org/act/2003_12/Lavoy 333 Recent research into the connection between nuclear energy programs and nuclear weapons programs suggests that States “with nuclear energy programs historically have not been significantly more likely to seek or acquire nuclear weapons.” Miller (2017) “Why Nuclear Energy Programs Rarely Lead to Proliferation”; International Security; 42:2, 40- 77

171 Proliferation Treaty” (NPT), which entered into force in 1970, and was indefinitely extended in 1995. To date, 189 States have acceded to the NPT, including the five recognized nuclear-weapon States (334). The DPRK had been a signatory, but withdrew from the NPT in 2003; and, four States – India, Israel, Pakistan, and South Sudan – are non-signatories. When the NPT was first proposed in 1968, it was predicted that there would be an additional 25-30 weapons States by 1990; instead, only three additional

States, i.e., South Africa (which voluntarily ended its nuclear weapons program by 1994),

India, and Pakistan became nuclear-armed by 1990, and only one more – DPRK – has publicly (335) announced its possession of nuclear weapons in the subsequent thirty years.

As such, the NPT has been credited with discouraging States from acquiring nuclear weapons, while still acknowledging the inalienable right of sovereign States to use nuclear energy for peaceful purposes.

A significant shortcoming of the NPT is that it does not preclude any signatory State from acquiring its own capability to enrich nuclear materials to levels sufficient to either fuel a military nuclear power plant – which typically utilize highly-enriched nuclear fuels

– or for use in a nuclear weapon. For instance, Iran’s nuclear program was initially an outgrowth of the aid provided under the “Atoms for Peace” initiative (Bruno, 2010), and

Iran continued to receive U.S. support until the 1979 revolution that deposed Shah

Mohammad Reza Pahlavi and installed Ayatollah Ruhollah Khomeini as Supreme

Leader. Khomeini disbanded the existing Iranian nuclear weapons research program

334 As defined by the NPT, the only NWS States – those allowed by the NPT to possess nuclear weapons – are the U.S., the U.S.S.R. (now the Russian Federation), the U.K., France, and the P.R.C. 335 Israel is widely believed to have nuclear weapons, but has never confirmed nor denied such possession.

172 after assuming power (336), but his successor, President Mahmoud Ahmadinejad, resumed this research and constructed an underground enrichment facility (Natanz) that reportedly could enrich uranium to greater than 80-percent, weapons-grade levels. The IAEA’s inspections of the Natanz enrichment facility, and other Iranian nuclear facilities, have not confirmed that Iran’s nuclear program is exclusively peaceful, but neither has the

IAEA been able to ascertain whether there is any enriched material being illicitly diverted (337).

While the IAEA has concluded that Iran is not violating the NPT, it should be noted that IAEA inspections can be circumvented since States can, and do, block unfettered access to sites where potential prohibited activities could be taking place. An example of this was the attempt by IAEA inspectors to examine Brazil’s Resende enrichment facility in 2004, which was obstructed by the Brazilians, who blocked off significant portions of the plant and did not allow the IAEA inspectors unconstrained access, contrary to NPT requirements (338). However, each NPT-signatory State enters into a Comprehensive

Safeguards Agreement (CSA) with the IAEA, which allows the State to “declare” what facilities and nuclear material is subject to safeguards oversight. Unless the IAEA can

336 Ayatollah Khomeini reportedly considered nuclear weapons as haram (sinful) under Muslim law. 337 IAEA (2019) “Verification and Monitoring in Iran”; https://www.iaea.org/newscenter/focus/iran 338 NPT signatories are required to adhere to IAEA Safeguards Agreements and Protocols, under which the IAEA is provided access, under agreements with more than 140 States, to verify that a State is not using its nuclear program for weapons purposes. IAEA’s safeguards assessments determine the “…correctness and completeness of a State’s declared nuclear material and nuclear-related activities. Verification measures include on-site inspections, visits, and ongoing monitoring and evaluation.” IAEA (2019) “IAEA Safeguards Overview: Comprehensive Safeguards Agreements and Additional Protocols”; https://www.iaea.org/publications/factsheets/iaea-safeguards-overview

173 ascertain that the State is violating the NPT by independent (339) means, which usually means that some State provides evidence of such violation to the UN Security

Council (340), the UN has no authority to seek out such evidence.

One of the IAEA’s mandated functions is the verification that NPT signatory States are not illicitly using their nuclear energy programs for nuclear-weapons purposes by performing various on-site inspections and visits to confirm that the States’ reports of declared nuclear material and activities are as stated. However, the IAEA (341) has no authority to unilaterally act on these findings:

Within the world’s nuclear non-proliferation regime, the IAEA’s safeguards system functions as a confidence-building measure, an early warning mechanism, and the trigger that sets in motion other responses by the international community if and when the need arises.

2.3.5 Enrichment

In order to have a nuclear energy program, there is generally (342) a corresponding requirement for nuclear fuels that have been enriched, i.e., concentrated, with fissionable

339 Alternately, the State can self-disclose, as was the case with Romania following the ouster of the Ceaucescu regime, when the new Romanian government acknowledged producing plutonium and of selling Norwegian-origin heavy water to India (such a transfer required both an IAEA safeguards INFCIRC/66 agreement with India, and reporting the sale to the IAEA). Office of Technology Assessment (1995) “Enhancing the Traditional IAEA Safeguards Regime”; Nuclear Safeguards And The International Atomic Energy Agency, Chapter 3, pg 37-88; OTA-ISS-615; https://apps.dtic.mil/dtic/tr/fulltext/u2/a338840.pdf 340 Secretary of State Colin Powell claimed in 2003 that Iraq was developing nuclear weapons The New York Times (2002/09/08) “Threats and Responses: The Iraqis; U.S. Says Hussein Intensifies Quest for A-Bomb Parts” 341 IAEA (2019) “Factsheets and FAQs - IAEA Safeguards Overview: Comprehensive Safeguards Agreements and Additional Protocols”; http://www.iaea.org/Publications/Factsheets/English/sg_overview.html 342 An exception would be the CANDU design, which can use natural, i.e., unenriched, uranium fuels.

174 isotopes to levels greater than that found in natural ores. Commercial light-water reactors typically use low-enriched uranium (LEU) fuels, i.e., enrichment levels of 3 to 5-percent

235U.

However, a logical consequence of having a domestic enrichment capability is the resultant ability to enrich uranium to levels corresponding to those used in military reactors and nuclear weapons, i.e., greater than 80-percent 235U. As such, one of the key concerns with non-proliferation efforts is the control of enrichment capabilities; however, since the NPT guarantees its signatories the right to the peaceful use of nuclear technologies, including operating enrichment facilities, it is challenging to preclude the use of enrichment technologies.

2.3.6 Szilárd Petition, Russell-Einstein Manifesto and Mainau Declaration

In July 1945, before the “Little Boy” and “Fat Man” were used, the Szilárd petition (343), which was signed by 70 scientists working on the Manhattan Project, requested that President Truman consider a demonstration of the atomic bomb before using it against civilian populations. However, the Szilárd petition was never forwarded to the president through the Manhattan Project’s chain of command.

Following the U.S. use of nuclear weapons against Japan, the calls for nuclear disarmament, including by several distinguished scientists who had been closely

343 There is a certain ironic symmetry to this petition, since Leó Szilárd, a Hungarian-born physicist, recognized the possibility that Nazi Germany could be attempting to develop nuclear weapons in 1939, and persuaded his much more famous former professor and co-inventor (Einstein-Szilárd refrigerator), Albert Einstein, to sign a letter to the Belgium royal family to urge Belgium to stop providing uranium ore to Germany. A second letter, co-authored by Einstein and Szilárd on August 9, 1939, was delivered to President Roosevelt on October 11, 1939, and warned about the consequences of a Nazi nuclear weapon. This second letter led directly to the initiation of the Manhattan Project.

175 associated with the development of these weapons, increased significantly. The 1955

Russell-Einstein Manifesto was signed by eleven pre-eminent intellectuals and scientists, ten of whom were Nobel laureates. The Russell-Einstein Manifesto advocated for world leaders to seek peaceful resolutions to conflict. A non-partisan conference, where scientists could evaluate the threats posed by nuclear weapons, was advocated, and the first of what became known as the Pugwash Conferences on Science and World Affairs was held in July 1957.

Concurrent with the Russell-Einstein Manifesto was the release of the Mainau

Declaration, which was drafted by Otto Hahn and Max Born, and signed by 18 Nobel laureates. Like the Russell-Einstein Manifesto, it was a plea to ban the use of nuclear weapons.

However well-meaning such petitions, manifestos and declarations were, they did nothing substantial to reduce the size of nuclear arsenals. More effective efforts to control the proliferation of nuclear weapons has been various treaties that have put into to place over the last fifty years, several of which are listed in Table 2-1:

Table 2-1, Non-Proliferation Treaties

1969 Treaty for the Prohibition of Nuclear 1991 START I Weapons in Latin America and the 1993 START II Caribbean 1996 African Nuclear-Weapon-Free Zone 1971 Seabed Arms Control Treaty Treaty 1972 Anti-Ballistic Missile Treaty 1997 START III 1974 Threshold Test Ban Treaty 2002 Strategic Offensive Reductions 1976 Peaceful Nuclear Explosions Treaty Treaty 1985 South Pacific Nuclear Weapons Free 2009 Central Asian Nuclear Weapon Free Zone Treaty Zone 1987 Intermediate-Range Nuclear Forces 2010 New START Treaty

176 2017 Treaty on the Prohibition of Nuclear Weapons Table 2-1: Non-Proliferation Treaties

2.3.7 “Proliferation-Resistant” Fuel Cycle

The “nuclear fuel cycle” refers to the three phases in uranium use: the front end, i.e., mining, refining and enrichment; the service period, i.e., reactor operation; and, the back end, i.e., reprocess or dispose of spent nuclear fuel. An “open fuel cycle” refers to spent fuel that is disposed of instead of being reprocessed, while a “closed fuel cycle” is one where the fuel is reprocessed and reused (see Figure 2-3).

Figure 2-3: Nuclear Fuel Cycle

177 The major advantage of closing the fuel cycle is that more total energy is extracted from the original fuel (344). However, the major disadvantage is that reprocessing produces weapons-grade fissile materials. It should be noted that weapons-grade materials can be, and are, used to fuel NPPs. For instance, the Megatonnes to Megawatts

Program (345) converted 500 metric tons of highly-enriched weapons-grade 235U

(HEU) (346) harvested from 20,008 decommissioned U.S.S.R.-era nuclear warheads and down-blended, i.e., combined with natural uranium. The material obtained was then used to produce mixed-oxide (MOX) LEU fuel that was used in U.S. commercial NPPs. It is estimated that as much as 10-percent of the electricity produced by U.S. NPPs from 1995 to 2015 came from this MOX fuel. While expensive, MOX is an effective way to utilize weapons-grade materials, as well as a proven method to reprocess used (spent) nuclear fuel, into LEU nuclear fuel usable by the commercial nuclear industry for peaceful purposes.

In the late 1970’s, the Carter Administration put forward a new proposal to manage the nuclear fuel cycle. Carter’s efforts were followed by subsequent proposals from the

344 Only about 5-percent of the available energy in the fuel is used in open fuel cycles. 345 the Megatonnes to Megawatts Program was officially known as the “Agreement between the Government of the Russian Federation and the Government of the United States of America Concerning the Disposition of Highly- Enriched Uranium Extracted from Nuclear Weapons,” and ran from 1993 until 2013. 346 HEU is uranium with greater than 20-percent concentration of 235U or 233U; and, LEU has an enrichment level of less than 5-percent. For the Megatonnes to Megawatts Program, the salvaged weapons’ material had been enriched to levels of at least 80-percent. The “Little Boy” weapon that was used on Hiroshima used 64 kg of 80-percent- HEU, while a 100-kilotonne W76 warhead used in U.S. submarine-launched ballistic missiles (SLBMs) uses less than 50 kg of 235U. The Megatonnes to Megawatts Program repurposed the weapons-grade material in 20,008 warheads for commercial use, i.e., electricity production.

178 European Union, Russia and Kazakhstan, among others (347). These proposals can be grouped as variations on Eisenhower’s 1953 nuclear fuel bank proposal in that they sought to develop a “proliferation-resistant” fuel cycle, and except for the Russian

Federation’s creation of a regional fuel bank, never made it past the proposal stage.

Proliferation-resistant fuel cycle proposals (348) included the U.S.’s 2005 proposal to create a reserve of nuclear fuel, in which the U.S. committed to provide up to 17 metric tonnes of HEU to be down-blended to LEU “to support assurance of reliable fuel supplies for states that forego enrichment and reprocessing” (349). The U.S. also championed in

2006 the development of a consortium of States into the Global Nuclear Energy

Partnership, renamed in 2010 to the International Framework for Nuclear Energy

Cooperation (350). The GNEP/IFNEC consortium would guarantee States that agree to

347 Among the 1970’s and 1980’s studies into spent fuel management was the Carter Administration’s “International Nuclear Fuel Cycle Evaluation,” the IAEA’s study on Regional Fuel Cycle Centers, and the IAEA Board of Governors’ Committee on Assurances of Supply. The IAEA CAS was established in 1980 to examine the feasibility of the multi-nationalization of the fuel cycle, but failed to reach consensus and went into formal abeyance in 1987. 348 Additional information about the viability of these proposals can be found in: United Nations Institute for Disarmament Research (2009) “Multilateralization of the Nuclear Fuel Cycle: Assessing the Existing Proposals”; UNIDIR/2009/4; https://www.unidir.org/files/publications/pdfs/multilateralization-of-the-nuclear-fuel-cycle-assessing-the- existing-proposals-345.pdf American Academy of Arts & Sciences (2010) “Multinational Approaches to the Nuclear Fuel Cycle,” authored by Charles McCombie, Thomas Isaacs, Noramly Bin Muslim, Tariq Rauf, Atsuyuki Suzuki, Frank von Hippel, and Ellen Tauscher. https://www.amacad.org/publication/multinational-approaches-nuclear-fuel-cycle 349 Rauf & Vovchok (2008) “Fuel for Thought”; IAEA Bulletin 49-2, pp 59-63; https://www.iaea.org/sites/default/files/49204845963.pdf 350 "The International Framework for Nuclear Energy Cooperation provides a forum for cooperation among participating states to explore mutually beneficial approaches to ensure the use of nuclear energy for peaceful purposes proceeds in a manner that is efficient and meets the highest standards of safety, security and non- proliferation. Participating states would not give up any rights and voluntarily engage to share the effort and gain the benefits of economical, peaceful nuclear energy." International Framework for Nuclear Energy Cooperation (2019) https://www.ifnec.org/ifnec/

179 forgo investing in enrichment and reprocessing technologies that they would have reliable access to nuclear fuel.

The third proposal, “Ensuring Security of Supply in the International Fuel Cycle,” was presented jointly by the World Nuclear Association (WNA), a nuclear NGO, and representatives of four enrichment companies in 2006 to provide a three-level mechanism to assure enrichment services.

Japan also proposed in 2006 the “IAEA Standby Arrangements System for the

Assurance of Nuclear Fuel Supply,” which would have developed an information system, managed by IAEA, to provide information contributed voluntarily by Member States on their national capacities for uranium ore, uranium reserves, uranium conversion, uranium enrichment and fuel fabrication.

A 2007 U.K. proposal was for the creation of “Enrichment Bonds,” which would guarantee that national enrichment providers would not be prevented from supplying enrichment services, and provide prior consent for export assurances.

The IAEA (351) characterized these proposals as:

 Technical or physical modification of the fuel cycle to avoid or limit access to sensitive nuclear materials such as high enriched uranium and plutonium;  Multilateral fuel cycle centres - proposed for a limited number of States pooling their resources in a single centre to provide fuel cycle services;  Multinational spent fuel centres - as an alternative to reprocessing or storage of separated plutonium;

351 IAEA (2019) "Multinational Approaches to Nuclear Fuel-Cycle in Historical Context", http://www.iaea.org/newscenter/focus/fuelcycle/key_events.shtml

180  A international nuclear fuel authority - proposed in order to guarantee the supply of nuclear power plant fuel to NPT NNWS [Non-Nuclear Weapons States] that had renounced national reprocessing or enrichment plants;  An international plutonium storage intended to implement Article XII. A.5 of the IAEA Statute.

These and other similar proposals (352) were designed to minimize the opportunities for illicit diversion of weapons-grade nuclear materials. However, there has been reluctance, especially by non-aligned non-nuclear weapons States, to accept some version of the fuel bank proposals. Most States believe that fuel banks could inflict a significant dependency on the availability of fuel for their NPPs through these centralized banks, as opposed to the relatively easy access to fuel presently through a number of fuel suppliers globally. This is due to the perception that such a bank could be utilized as a political tool to reward or punish State actions, e.g., a State with endemic civil rights violations may have their access restricted as a form of economic sanction.

In addition, these proposals reinforce a perception that fuel banks would be an attempt by those States who have existing enrichment and fuel fabrication capabilities to restrict other States from acquiring an indigenous enrichment capability. This restriction could infringe on States’ ability to ensure the future security of their energy supply, and act as a backdoor means to counter the NPT pillar allowing peaceful use of nuclear technologies.

352 Rauf & Vovchok (2008) “Fuel for Thought”; IAEA Bulletin 49-2, pp 59-63; https://www.iaea.org/sites/default/files/49204845963.pdf

181 Finally, these proposals were seen to emphasize a “Have versus Have-Not” mentality.

Specifically, there was the strong suspicion that these proposals were an attempt to prevent additional States from developing indigenous nuclear technologies in order to minimize membership in the most exclusive of “clubs” – the nuclear weapons states

(a.k.a., “nuclear club”). As such, these various proposals have all failed to gain wide- spread support due to the insurmountable political, as opposed to the more readily correctable technical, issues involved.

2.4 Commercialization of Nuclear Energy

Initially, the development of nuclear energy generation technologies was closely connected with the efforts of States to obtain nuclear weapons; hence, the earliest States to develop nuclear power plants were primarily those that had also obtained nuclear weapons, with the notable exception of Canada. The connection between commercial and military uses of nuclear materials began to change following Eisenhower’s 1953

“Atoms for Peace” speech in that the U.S. relaxed – but did not eliminate – the restrictions (353) included in the Atomic Energy Act of 1946 on sharing nuclear science and technologies with other States. The AEA1946’s restrictions even applied to those States

353 These restrictions were mainly due to the revelations arising from the September 5, 1945, defection of Igor Sergeyevich Gouzenko, a cipher clerk in the U.S.S.R.’s embassy to Canada. Gouzenko provided 109 documents on the U.S.S.R.′s espionage activities, including the U.S.S.R.’s efforts to steal nuclear secrets. The U.S. Congress reworked the McMahon Act’s original language from dissemination to control of information, which led to significant post-war rifts in diplomatic and security engagements among the Allies, since this was a unilateral abrogation of the 1943 Quebec Agreement to share nuclear-related information. The McMahon’s Act’s restrictions were relaxed, but not eliminated, with a 1954 amendment (Atomic Energy Act of 1954) to promote private development of nuclear energy in support of the Eisenhower Administration’s Atoms for Peace initiative.

182 such as the U.K., Canada, and France, that had actively participated in the Manhattan

Project.

In 1954, the AEA1946 was amended (Atomic Energy Act of 1954) to promote private development of nuclear energy in support of the Administration’s Atoms for Peace initiative, and the USAEC began to actively work with a variety of States – mostly

Developing States – in an effort to bring these States within the U.S.’s sphere of influence, and thus counter the U.S.S.R.’s concurrent outreach (354). The USAEC provided educational and technology resources, including providing research reactors and fuel. The USAEC’s Atoms for Peace program provided the gateway for the commercialization of nuclear energy both domestically and globally.

At least initially and primarily for the more liberal democratic States, the development of commercial nuclear energy was tied first to the evolution of the federal- level agencies that initially promoted the use of nuclear technologies, and then increasingly by the private sector. The national-level nuclear regulatory authority

(NNRA) came to have a more significant role in providing a means for policy-makers and the public to have assurance that nuclear technology was being safely developed and used. As demonstrated below, if an NNRA was deemed by the policy-makers, and more so by the State’s citizenry, as trustworthy, then the commercialization of nuclear energy in that State has a greater likelihood of success.

354 There is an irony to this outreach, in that the Russian Federation, as well as the PRC, is doing much the same currently with their similar use of nuclear technology offers to extend their respective influence globally. See Footnotes 93, 102, 103, and 104 in Chapter 1 of this dissertation. The Economist (2018/08/07) “Russia leads the world at nuclear-reactor exports – China is its only real competitor”; https://www.economist.com/graphic-detail/2018/08/07/russia-leads-the-world-at-nuclear-reactor- exports

183 It should also be noted that the commercialization of nuclear energy was undertaken initially as government monopolies in all of the States that utilize NPPs. However, starting in the 1960’s, in some States this monopoly was divested and private firms were allowed to enter the nuclear technology market.

The first reactor that generated electricity (355) was the USAEC’s Experimental

Breeder Reactor I (EBR-I, also known as Chicago Pile 4, CP-4), located outside of Arco,

Idaho, which briefly powered four 200-watt light bulbs on December 20, 1951, and then produced enough power the next day to light the building housing EBR-1. However, this electricity production was for demonstration purposes only, since EBR-I was not intended for power generation, but rather to validate the possibility of a breeder reactor, i.e., a reactor that produces more fuel than it consumes (356).

The first reactor purpose-built to supply electricity to a power grid, Atom Mirny

(“peaceful atom”) Unit 1 (AM-1) became operational in June 1954, in Obninsk, U.S.S.R.

AM-1, light-water cooled and graphite-moderated, provided about 5 megawatts-electric

(MWe) (357) and district heating to the local economy from 1954 until 2002. AM-1 was the prototype for the Reaktor Bolshoi Moshchnosty Kanalny (RBMK, high power channel

355 Technically, the first reactor to produce electricity, although it only powered instrumentation, was the X-10 Graphite Reactor in Oak Ridge, Tennessee, on September 3, 1948. Also known as the Clinton Pile or the X-10 Pile, it was the second Manhattan Project reactor and the first designed and built for continuous operation. It was used primarily to develop operational techniques and procedures, and to train operators. 356 EBR-I experienced a partial meltdown on November 29, 1955, during a test to determine the cause of unexpected reactor responses to changes in coolant flow. It was subsequently repaired and continued to operate until it was decommissioned in 1964. 357 The output of commercial nuclear reactors is typically measured in megawatts, i.e., million-watts, as either: 1) the

amount of thermal (heat) energy produced (MWt); 2) the total gross electrical output (MWegross); or, 3) the net

electrical output (MWenet), i.e., the amount of electricity actually supplied to the power grid, or the gross production minus that used by the power plant itself). A typical nuclear reactor has a thermal efficiency, i.e., ratio of gross MWe to MWt, of about 33-37 percent (i.e., only about of the third of the total energy is usable).

184 reactor) electricity- and plutonium-producing design, the most infamous of which was

Chernobyl unit 4.

AM-1 was followed by the world’s first nuclear power station to produce industrial- scale electricity, the U.K.’s Calder Hall, with the first of four reactors being connected to the grid on August 26, 1956. Until 1964, electricity production from Calder Hall’s four

60-MWe Magnox reactors (358) was a secondary role, with the station’s primary purpose being to produce weapons-grade fissile materials for the U.K.’s nuclear weapons program. However, in 1964, its primary function became electricity generation, with plutonium production a secondary function; and, after April 1995, Calder Hill stopped producing fissile materials for the U.K.’s military, instead transferring over to the exclusive production of commercial electricity until it was finally shutdown in 2003.

On July 1, 1956, France’s first reactor, the 2-MWe proof-of-concept G1 at the

Marcoule Nuclear Site (Site nucléaire de Marcoule) was commissioned. The G1 was the first of three UNGGs (359) (Uranium Naturel Graphite Gaz) that operated at Marcoule (360).

358 Initially codenamed “PIPPA” (pressurised Pile Producing Power and plutonium) by the UKAEA to signify their dual purposes of producing energy and weapons-grade fissile materials, magnox (magnesium non-oxidising) reactors were pressurized, carbon dioxide-cooled, graphite-moderated reactors using unenriched uranium fuel in a magnox cladding. There were 26 magnox units built at 11 stations in the U.K., and two exported: Tōkai Mura, Japan, which operated from 1966 to 1998; and, Latina, Italy, which operated from 1963 to 1987. North Korea developed its own magnox reactors, including a 5-MWe experimental reactor at Yongbyon, which operated from 1986 to 1994 and restarted in 2003. The DPRK also began, but never completed, construction of a 50-MWe reactor at Yongbyon and a 200-MWe reactor at Taechon, which were based on the U.K.’s magnox design. The last operating U.K. magnox unit, located at the Wylfa Nuclear Power Station in Anglesey, Wales, was permanently shut down December 30, 2015. 359 The Magnox and UNGG gas cooled reactor (GCR) designs were developed independently and in parallel to each other, with both designs intended to produce both electricity and plutonium. 360 The Marcoule G2 and G3 units, which commenced operation in 1959 and 1960, respectively, were scaled up to produce 43-MWe.

185 The UNGG design was graphite-moderated, gas-cooled (using carbon dioxide), and fueled with natural uranium. The Marcoule Nuclear Site was shut down in 1984.

On October 19, 1957, the Vallecitos Nuclear Center in Alameda County, California, became the first privately owned and operated NPP to supply electricity to a public utility grid (361). Until it ceased operations on December 9, 1963, the 24-MWe light-water- moderated and cooled, enriched uranium boiling water reactor, holder of the U.S. Atomic

Energy Commission's “Power Reactor License No. 1”, served as both an electricity producer and a prototype test bed.

The first reactor in Asia, the Japan Power Demonstration Reactor (JPDR), was a prototype BWR built and operated by the Japan Atomic Energy Agency. The JPDR achieved initial criticality on August 21, 1963, and operated until March 17, 1976. Tokai

1, Japan’s first commercial NPP, used a 160-MWe Magnox reactor and operated from

November 9, 1965, until March 30, 1998,

The Atucha I NPP, near Zárate, Buenos Aires, became the first nuclear power plant in

South America when it was connected to the grid on March 19, 1974. A 362-MWe pressurized heavy water reactor (PHWR), it was designed and built by Seimens KWU

361 The U.S.’s first attempt to supply significant amounts of electricity to a local power grid was accomplished in 1955 when the USAEC’s BORAX-III test reactor powered Arco, Idaho, for about an hour. The ANPP SM-1 was connected to the local electrical grid on April 29, 1957. The USAEC’s non-commercial liquid-metal-cooled, graphite-moderated demonstration reactor, the Sodium Reactor Experiment, located near Santa Susana, California, first supplied power to the local grid on July 12, 1957, and continued until July 1959, when it was shut down due to a partial meltdown. It can be argued that either the Yankee Rowe NPS (1960-1992) or Unit 1 of the Dresden Nuclear Power Station (1960-1978) was the first large U.S. commercial NPP since Yankee Rowe was the first NPP that was built to commercial specifications (as opposed to using a re-purposed aircraft carrier reactor), and Dresden 1 was the first privately-financed NPP.

186 (Kraftwerk Union). However, the design was both unique and obsolete before the plant’s construction was completed.

On April 4, 1984, the Koeberg NPS, near Cape Town, South Africa, became the first

NPP in Africa. A 970-MWe 3-loop PWR designed by France’s Framatome (now Areva), the NPP is expected to operate until 2044.

Figure 2-4 provides a timeline when each State’s nuclear energy program began and, for Italy, Kazakhstan, and Lithuania, when they ended (362).

362 The IAEA developed a video depicting the global growth of nuclear energy, “Fifty Years of the IAEA's Power Reactor Information System,” which is available on YouTube (https://www.youtube.com/watch?time_continue=3&v=Bk-NGcllOr4).

187

Figure 2-4: National Nuclear Power Program Startup and Phase-out, Source: The World Nuclear Industry Status Report 2019, pg 29

188

Figure 2-5: Nuclear Reactors Under Construction. Source: The Economist (2017/01/30) “Daily chart - Construction of most nuclear-power reactors is behind schedule”; https://www.economist.com/graphic- detail/2017/01/30/construction-of-most-nuclear-power-reactors-is-behind-schedule

189 2.4.1 Types of Nuclear Reactors

Nuclear reactors (363) are generally organized based on the energy of the nuclear reaction; the moderator, coolant, and fuel used; and, the generation of the design. Of the

444 commercial nuclear reactors operating as of August 2019, 300 are pressurized light- water reactors (PWRs), 66 are boiling water reactors (BWRs), 48 are pressurized heavy- water reactors (PHWRs), 14 are gas-cooled reactors (GCRs), 13 are light-water graphite reactors (LWGR), and 3 are fast reactors (FBRs) (364).

Based on the energy of the nuclear reaction, the most common type of nuclear reactor deployed globally are thermal reactors, which contain neutron moderator materials, including moderating coolants, to slow (thermalize) neutrons so as to increase the probability of fissioning the fissile fuel. Alternatively, fast neutron reactors (365), which

363 All nuclear reactors operate by nuclear fission. There is a witticism that commercial nuclear fusion, in which lighter elements are fused together – this is the process underway in stars, is 30 years away, and have been since the 1940’s. The first patent for a fusion reactor was applied for in 1946 by George Paget Thomson and Moses Blackman of the U.K.’s Atomic Energy Authority. Research into achieving and sustaining fusion has continued globally since Thomson and Blackman’s initial efforts, including the multinational magnetic confinement ITER (originally International Thermonuclear Experimental Reactor) in France, the U.S.’s inertial confinement National Ignition Facility (NIF), and the PRC’s Experimental Advanced Superconducting Tokamak (EAST), which holds the current records for sustaining plasma confinement for over 100 seconds, and for achieving temperatures of 100 million Celsius (the core of the Sun is estimated to be 15 million Celsius). 364 The 183 commercial nuclear reactors that have been permanently shut down includes 55 PWRs, 49 BWRs, 38 GCRs, 11 LWGRs, 9 PHWRs, 8 FBRs, 4 HTGRs (high-temperature gas-cooled reactors), 4 HWGCRs (heavy- water gas-cooled reactors), 2 HWLWRs (heavy-water light-water reactors), 1 SGHWR (steam-generating heavy- water reactor), 1 LMGMR (sodium-cooled graphite-moderated reactor), and 1 OCM (organically-cooled and moderated reactor). The 53 reactors currently under construction includes 43 PWRs, 4 BWRS, 4 PHWRs, 1 FBR, and 1 HTGR. World Nuclear Organization (2019) “Reactor Database”; https://www.world-nuclear.org/Information- Library/Facts-and-Figures/Reactor-Database.aspx 365 The world's first fast-neutron reactor, code-named “Clementine,” achieved criticality in 1946. Plutonium-fueled and cooled with liquid mercury, it was used primarily for U.S. nuclear weapons research, but also investigated the feasibility of civilian breeder reactors. Other fast reactors of note include the 1,242-MWe Superphénix, a joint effort between France, Italy, and Germany, which operated from 1986 until 1997, producing electricity while using spent

190 are more expensive to operate than thermal reactors, do not use neutron moderators, and use less-moderating coolants. However, fast reactors require a more highly enriched fuel, but also produce less transuranic waste since actinides are fissionable with fast neutrons.

There are four main types of moderator materials in use – water (heavy- and light-), graphite, light-elements (366), and organics (367). Coolants in use include water (utilized by about 95-percent of reactors globally (368)), liquid-metal (369), gas (370), and molten salts (371).

Generation refers to the four main periods in reactor development to date, including the early prototypes, research reactors, and non-commercial power-producing reactors

(“Generation I”); those NPPs that were designed, built, and operated in 1965-1996 time-

fuel from conventional nuclear reactors to breed new fuel; the U.S.S.R.’s 600-MWe BN-600 sodium-cooled fast breeder reactor, which has been operating at the Beloyarsk Nuclear Power Station since 1980; and, the Prototype Fast Breeder Reactor (PFBR), a 500-MWe fast breeder reactor under construction at the Madras NPS, it is the second stage of India's three-stage nuclear power program to achieve energy independence. 366 Light-element-moderated reactors include molten salt reactors (MSRs) and liquid metal cooled reactors. MSRs are moderated by light elements such as lithium or beryllium, while moderators such as beryllium oxide. The major advantages of MSRs/LMRs are that they operate at lower pressures and much higher temperatures than LWRs, making them attractive for use as a process-heat provider for industrial uses; however, the major drawback is that much greater percentages of the facility is contaminated, making maintenance very expensive. 367 Organically moderated reactors (OMR) generally use a hydrocarbon as moderator and coolant. OMRs main advantage is that organic fluids are less corrosive to metals, allowing for simpler designs and less expensive materials to be uses, and a reduction in the need for containment; however, the hydrocarbon fluids require higher flow rates than other moderators and coolants, and have a much greater fire risk. Additional information on the Piqua (Ohio) Nuclear Power Facility, which operated an OMR, including an USAEC film discussing the facility, can be reviewed at http://ansnuclearcafe.org/2019/10/31/piqua-organic-cooled-reactor- in-photo-and-film/. 368 Includes pressurized (PWR) and boiling (BWR) light-water reactors, which make up about 64- and 20-percent, respectively, of all reactors globally, and pressurized heavy-water reactors (PHWR), which make up about 11- percent of all reactors. 369 Liquid metal coolants include sodium, lead, lead-bismuth eutectic, and in mercury. 370 GCRs use an inert gas, such as helium, carbon dioxide, or nitrogen. 371 MSRs typically use a mixture of fluoride salts; and, the coolant is typically used as a matrix in which the fissile material is dissolved, such that the fuel is also part of the coolant.

191 frame (“Generation II”); those NPPs that have been designed, built, and operated since

1996 and incorporate evolutionary improvements on the Generation II designs

(“Generation III) (372); and, those reactor designs presently under development that incorporate both evolutionary improvements on the Generation III designs and revolutionary advances (“Generation IV”), including designs that will minimize nuclear waste, are more proliferation-resistant, and/or more economical to build, operate, and maintain.

Figure 2-6: Evolution of Commercial Nuclear Reactors by Generation

372 There is also the so-called Generation III+ designs, such as the Westinghouse/Toshiba AP1000, the SNPTC/Westinghouse CAP1400, the Areva EPR, and the OKB Gidropress VVER-1200, that incorporate improvements on the Generation III designs and have gone into production since 2016.

192 Breeder reactors generate more fissile material than they consume, and are generally fast reactors, although thermal reactors, such as Shippingport (373), have been used as breeders.

In addition, there are non-power research/test reactors, used for research, testing, training, and for the production of radioisotopes for medicine and industry. There are about 240 RTRs presently operating in 56 countries, and another 578 non-military RTRs are being, or have been, decommissioned.

2.4.2 Nuclear Power in the U.S.

2.4.2.1 U.S. Atomic Energy Commission

As discussed above, on January 1, 1947, the Atomic Energy Act of 1946 transferred federal control of nuclear technologies research and development, as well as ownership of the Manhattan Project sites (374), from the U.S. Army’s Corps of Engineers to the newly created civilian federal agency, the U.S. Atomic Energy Commission (USAEC) (375). The

AEA1946’s Declaration of Policy stated:

373 Shippingport APS, operated by Duquesne Light Company and located about 25 miles west of Pittsburgh, Pennsylvania, achieved initial criticality on December 2, 1957, and began supplying electricity to the power grid on December 18, 1957. It permanently ceased operation in October 1982. It used a reactor from a cancelled nuclear- powered aircraft carrier and, unlike modern NPPs, had highly enriched “seed” fuel (93-percent-235U) with a “blanket” of natural uranium (seed-and-blanket design). The second core also used the seed-and-blanket design, but had a larger seed and thus produced more power. The final core used a 233U seed and a thorium blanket, making it the first light-water-moderated, thermal breeder reactor, transmuting thorium into 233U. 374 In 1946, before the USACE handed over control to the newly formed USAEC, the University of Chicago’s Metallurgical Laboratory was reorganized into the Argonne National Laboratory. In 1948, the USAEC reorganized the Clinton Laboratories into the Oak Ridge National Laboratory. Other former Manhattan Project sites became what are now known as the Idaho National Laboratory, the Pacific Northwest National Laboratory, Brookhaven National Laboratory, Los Alamos National Laboratory, and the Sandia National Laboratory, among others. 375 The USAEC continued the USACE’s practice of contracting out most of the technical and construction work at the former Manhattan Project facilities, most of which were newly designated as National Laboratories.

193 …it is hereby declared to be the policy of the people of the United States that, subject at all times to the paramount objective of assuring the common defense and security, the development and utilization of atomic energy shall, so far as practicable, be directed toward improving the public welfare, increasing the standard of living, strengthening free competition in private enterprise, and promoting world peace.

However, while AEA1946’s Declaration of Policy included the private sector in the development and utilization of nuclear technologies, the practical result of the AEA1946 was that any private research was conducted at, and under, federal direction, with the development of nuclear technologies, and ownership of nuclear materials, was considered to be a federal monopoly. As such, most of the initial research and development was aimed primarily at military uses, particularly naval propulsion plants and nuclear weapons.

Following Eisenhower’s “Atoms for Peace” speech, the U.S. Congress amended

AEA1946 with the passage of the Atomic Energy Act of 1954 (AEA1954), which provided private industry in the U.S. the right to own reactors. However, nuclear materials remained a federal monopoly, so nuclear fuel was leased from the federal government. It bears additional emphasis that the USAEC was initially formed not as a regulatory body, but rather to assert civilian control over the research and development of

– primarily – the military uses of nuclear technologies, especially nuclear weapons and power plants for military uses. Following the passage of the AEA1954, the USAEC assumed a dual, albeit secondary, function, to promote the civilian (commercial) development and use of nuclear technologies, particularly nuclear energy; and, to regulate the nascent commercial industry.

194 The USAEC enthusiastically (376) supported the commercialization of nuclear energy, both domestically and internationally, mostly through providing selected U.S. companies with access to technical data and assistance in building some of the initial U.S. NPPs; and, in active cooperation with States that the U.S. Government was trying to influence through nuclear largess, providing multiple States with technical assistance and research reactors (377).

In 1954, the Chairman of the USAEC, Levi Strauss, proposed a plan to work with the private sector to build five experimental prototype reactors within five years, based on the design the USAEC had developed. These prototype reactors included a PWR design

(Shippingport) that was based on the nuclear propulsion systems developed for naval

376 It is important to bear in mind the time-frame and political situation – the Cold War was in its seventh year, and there was a belief that the U.S.S.R. (and to a degree, the PRC) presented an existential threat to liberal democracies like the U.S. Instances such as the connection of the Atom Mirny NPP to the power grid (and the challenge Sputnik 1 represented when it orbited on October 4, 1957, setting off the Space Race) were seen as direct challenges to U.S. capabilities. AEA1954 provided the USAEC the authority to have a role in demonstrating to the world that U.S. ingenuity and capabilities were second to none, and most USAEC staff members were enthusiastic about doing their part, as described by Hewlett and Holl: “The Commission under Strauss's leadership saw American preeminence in the nuclear sciences as key element in the Atoms-for-Peace program. . . . Behind these decisions lay the conviction that, by continuing to set the pace for all other nations in the most prestigious field of physical research, the United States could demonstrate its clear superiority over the Soviet Union.” Hewlett & Holl (1989) Atoms for Peace and War, 1953-1961: The Eisenhower Administration and the Atomic Energy Commission. A History of the Atomic Energy Commission; Berkeley: University of California Press; p. 522 377 In 1955, India was the first State that the USAEC provided technical assistance and materials to. On May 18, 1974, India’s nuclear scientists, trained under the “Atoms for Peace” program, detonated the Smiling Buddha nuclear weapon device, which used plutonium diverted from a Canadian-supplied reactor. Pakistan utilized a very similar path and, on May 28, 1998, detonated its Chagai-1 nuclear weapon. Starting in 1957, Iran – which was ruled by Mohamed Reza Shah – was provided technical assistance, nuclear materials, and in 1967 a 5-MW research reactor powered by highly-enriched fuel; as such, it is doubtful that there would have been an Iranian nuclear weapons program absent the “Atoms for Peace” initiative (coupled with the laxity of oversight exercised over the materials provided).

195 warships; the Sodium Reactor Experiment (378), built by the Atomics International

Division of North American Aviation, was a liquid-metal (sodium) cooled, graphite- moderated, reactor intended to prove out the use of various fuels, including thorium (379); the BORAX-III experimental BWR, constructed at the USEAC’s Argonne-West National

Reactor Testing Station, now Idaho National Laboratory; and, the Experimental Breeder

Reactor-II (EBR-II) and the Aqueous Homogeneous Reactor Experiment No. 2 (380), both built at Oak Ridge. By the beginning of 1958, the USAEC and the private sector were cooperating on the development of nine nuclear energy projects.

In addition, the USAEC searched for a way to utilize its growing expertise with nuclear weapons for non-military purposes, eventually advocating that “peaceful nuclear explosions” could be used for construction and mining purposes. Some of the demonstration projects proposed under what came to be known as “Project Plowshare” included proposals for constructing a sea-level waterway through Nicaragua, i.e., “Pan-

Atomic Canal”; connecting Arizona aquifers; cutting a right-of-way through California’s

Bristol Mountains to accommodate the construction of Interstate 40 (“Project Carryall”); and, creating artificial harbors (“Operation Chariot”). In addition, Plowshare PNEs were

378 The Sodium Reactor Experiment was both the first U.S. reactor custom built to produce commercial quantities of electricity, and the first to be shut down due to a partial meltdown. 379 While thorium is considered to be a more proliferation resistant fuel, natural thorium does not have fissile isotopes, and thus requires the addition of fissile materials to achieve criticality. Five U.S. commercial NPPs operated thorium-converter cores between 1962 and 1989, including Indian Point 1 (1962-1965), Elk River (1964-1968), Shippingport (1977-1982), Peach Bottom 1 (1967-1974), and Fort St. Vrain (1976-1989). 380 The Aqueous Homogeneous Reactor Experiment No. 2 actually achieved initial criticality in October 1952, and the design power level of 1-MW was achieved in February 1953. Also known as “water reactors,” AHRs mix the fuel (soluble nuclear salts) with the water (heave- or light-) coolant/moderator, and are considered to be among the most inherently-safe reactor designs; however, the USAEC had decided on solid fuels, and thus did not pursue this technology. There are about 16 AHRs currently operating as research reactors.

196 utilized to break-up oil shale, analogous to the process now known as “fracking”

(hydraulic fracturing), which is presently used for natural gas extraction; and, to determine if a PNE can be utilized to generate electricity (“Project Gnome”). In the

1961-1977 timeframe, 27 Plowshare PNE tests were conducted, with only limited accomplishment of any of the stated goals, mostly due to unacceptably high levels of residual radioactive contamination (381) (Kaufman, 2012 (382)).

In March 1962, President Kennedy requested the USAEC perform a “new and hard look at the role of nuclear power” in the U.S. economy, to which then Chairman Glenn

Seaborg responded optimistically that the USAEC’s ten-year civilian power program, adopted in 1958 as a follow-on to the original five-year plan, would attain its primary objective of making commercial nuclear power economically competitive by 1968.

Seaborg also predicted that by 2020 90-percent of electricity in the U.S. – for which the demand was rapidly rising at the time – would be generated by about 1,000 reactors. As such, Seaborg recommended that USAEC (and federal) resources be concentrated on the most promising reactor technologies, that the establishment of a self-sufficient and growing nuclear power industry be made a national priority, and that there needed to an

381 The U.S.S.R. had two analogous programs – the “Employment of Nuclear Explosive Technologies in the Interests of National Economy” (“Program 6”), and the “Peaceful Nuclear Explosions for the National Economy” (“Program 7”). Approximately 156 PNE tests were conducted, some of which used multiple nuclear weapons, in the 1965-1989 timeframe. At least six of these explosions were for applied purposes, i.e., extinguishing out-of- control gas well fires. This application was briefly considered as a possible means to contain the 2010 Deepwater Horizon oil spill, but then U.S. Secretary of Energy Stephen Chu firmly vetoed this option. (Broad, 2010) Shabad (1071/12/02) “Soviet Discloses Nuclear Blast That Put Out Fire in Gas Field”; New York Times; https://www.nytimes.com/1971/12/02/archives/soviet-discloses-nuclear-blast-that-put-out-fire-in-gas-field.html 382 Kaufman (2012) Project Plowshare: The Peaceful Use of Nuclear Explosives in Cold War America; Cornell University Press

197 increased emphasis on the development of improved breeder reactors to ensure the continuing availability of sufficient nuclear fuel resources (383).

The commercialization of nuclear energy in the U.S. was given a significant boost on

August 26, 1964, with the signing of Public Law 88-489, the Private Ownership of

Special Nuclear Materials Act, which ended the federal government’s monopoly on nuclear materials. In addition, this Act also authorized the USAEC to offer enrichment services to both domestic and foreign customers under long-term contracts.

During the 1960’s and 1970’s, various U.S. electric utilities enthusiastically embraced the concept of nuclear power plants, especially since the USAEC was actively providing the full support of the federal government to the burgeoning commercial nuclear industry.

By the mid-1970’s, some 233 NPPs, with a capacity of 232,000-MW, were either in operation, under construction, or on order from the various domestic nuclear reactor vendors. This number exceeded USAEC Chair Seaborg’s 1962 prediction of achieving

40,000-MW of nuclear-generated electricity by 1980 by a factor of almost six. However, this rapid expansion revealed structural flaws in the way the USAEC was organized, especially as its staff began to impose additional requirements on the industry in an attempt to prevent safety challenges that had resulted in the melt-downs of earlier

383 The availability and normalized cost of uranium was relatively constant at around 2018$20/pound, with a sharp spike to about 2018$120/pound in 2007 at the height of the so-called “Nuclear Renaissance”; however, the cost has since stabilized at about 2018$40/pound.

198 Generation I reactors, including the Sodium Reactor Experiment and Enrico Fermi

Unit 1 (384), as well as the experience from the ANPP reactor SL-1 (385).

Domestic nuclear reactor developers – including General Electric (GE), which specialized in BWRs, and Westinghouse, which specialized in PWRs – built 13 reactors under “turn-key programs” (386) in the first half of the 1960’s, and lost around $1-billion in doing so (387). The rationale behind turn-key contracts was that these would function as

“loss-leaders” (388), making NPPs appear to be economically competitive with fossil- fueled plants so as to encourage electric utilities to invest in nuclear reactors under the

384 Unit 1 of the Enrico Fermi Nuclear Generating Station (Fermi 1), located approximately midway between Detroit, Michigan and Toledo, Ohio, had a partial meltdown on October 5, 1966. A 94-MWe prototype liquid-metal fast breeder reactor, one of the channels that directed the liquid sodium coolant through the fuel became blocked, which resulted in several fuel assemblies over-heating and melting. The unit was repaired and returned to service, but continued to experience operating challenges, resulting in permanent shutdown in 1972. 385 SL-1 has the dubious distinction of being the only reactor accident in the U.S. that resulted in immediate fatalities when, on January 3, 1961, due to the improper withdrawal of the central control rod, the core power level reached nearly 20 GW (almost 700-times its rated power) in just four milliseconds, precipitating a steam explosion that killed the three military operators. 386 “Between late 1962 and mid-1966, the leading United States reactor manufacturers offered nuclear reactors for sale to public utilities on “turnkey” terms. These turnkey contracts were contracts under which the reactor manufacturer took on all the responsibilities for design, construction and testing of a reactor, simply turning over the key to the reactor once the reactor became operational. Moreover, turnkey contracts were available under fixed price terms.” Burness, et al. (1980) “The Turnkey Era in Nuclear Power”; Land Economics, vol. 56, no. 2, pp. 188–202. JSTOR, www.jstor.org/stable/3145862. 387 Turn-key contracts supported the initial growth of the U.S. nuclear energy industry in the 1960’s, but represented a significant financial challenge for both companies. There are very few private corporations willing to absorb such losses today; however, government-backed companies are more agreeable. A recent example of a similar situation would be the Republic of Korea’s Korea Atomic Energy Research Institute (KAERI) agreement with Saudi Arabia’s King Abdullah City for Atomic and Renewable Energy (KA-CARE) to assess the potential for building at least two South Korean SMART (System- integrated Modular Advanced Reactor) reactors. SMART is a 330 MWt PWR with integral steam generators and advanced passive safety features, designed for generating up to 100 MWe electricity and/or process heat applications. Pringle & Spigelman (1981) The Nuclear Barons; New York: Holt, Rinehart, and Winston; p. 265 388 “Loss-leader” is a strategy in which a product or service is offered at below market cost in order to stimulate other sales of more profitable goods or services. Inc. (2019) “Loss Leader Pricing”; https://www.inc.com/encyclopedia/loss-leader-pricing.html

199 expectation that this would lead to significant profits in the future as more electric utilities opted to add more, and more accurately-priced, NPPs to their portfolio in the future. For a while, this strategy appeared to be a solid bet.

By 1961, the USAEC realized that it needed to evolve its organizational structure to accomplish its new role of regulating the private sector’s use of nuclear materials and technologies, and created the position of Director of Regulation, who would report directly to the Commission (389). Thus, the regulatory staff no longer reported to the

USAEC’s General Manager, the senior-most career civil servant in the USAEC.

However, just administratively separating the promotion and oversight functions proved to be insufficient. In 1963, the USAEC’s regulatory staff was physically moved from the USAEC’s headquarters in Germantown, Maryland, to offices in Bethesda.

MD (390), under the impression that the USAEC could effectively promote and regulate, simultaneously, as long as there was a recognized partition between the two functions.

This belief was already coming under fire (391).

The Bodega Bay NPP, initially proposed by Pacific Gas & Electric in May 1958, would have been the first commercial, i.e., not a repurposed military, NPP built in the

389 When referred to as the “Commission,” it is understood to be the empaneled five Commissioners appointed by the U.S. President and confirmed by the U.S. Senate. The USAEC’s Commissioners formulated policies that the staff, i.e., the USAEC’s civil service employees, and its contracted subject matter experts, implemented to regulate the safe and secure commercial uses of nuclear material. 390 The USAEC’s regulatory staff, who subsequently became USNRC staff in 1974, remained housed in various buildings in the Bethesda area, as well as a downtown Washington, DC, office for the Commissioners, until the USNRC headquarters staff was consolidated into their present Rockville, MD, complex starting in 1990. 391 Buck (1983) “The Atomic Energy Commission”; U.S. Department of Energy, Office of History and Heritage Resources

200 U.S. However, public controversy (392) led to the abandonment of the proposed plant during its initial construction phase (393). This rather inauspicious failure for the commercialization of nuclear energy led to tensions between the political pressure the

U.S. Congress was employing on the USAEC to provide more government support to the development of commercial nuclear energy (394), and the countervailing concerns being raised by the U.S. public over safety issues. For an organization whose enabling legislation, and common practice, had essentially hidden its activities while providing it with a virtual carte blanche to research and develop all things nuclear, as long as there was some nexus to national defense, there was little oversight and less public

392 The USNRC’s Historian identified Bodega Bay as the birthplace of the U.S. anti-nuclear movement. Wellock (1998) Critical Masses: Opposition to Nuclear Power in California, 1958–1978; The University of Wisconsin Press Daly (2015) “Nuclear Fault Line – Bodega Head”; Sonoma Magazine; https://www.sonomamag.com/nuclear- fault-line/ 393 Walker & Wellock (2010) “A Short History of Nuclear Regulation, 1946–2009”; U.S. Nuclear Regulatory Commission; NUREG/BR-0175, Rev. 2 394 “In 1956, two Democratic members of the Joint Committee, Representative Chet Holifield and Senator Albert Gore, introduced legislation directing the AEC to construct six pilot nuclear plants, each with a different design, to ‘advance the art of generation of electrical energy from nuclear energy at the maximum possible rate.’ Supporters of the bill contended that the United States was falling behind Great Britain and the U.S.S.R. in the quest for practical and economical nuclear power. Opponents of the measure denied that the United States had surrendered its lead in atomic technology and insisted that private industry was best able to expedite further development. Strauss declared that ‘we have a civilian program that is presently accomplishing far more than we had reason to expect in 1954.’ The Gore-Holifield bill was defeated by a narrow margin in Congress, but the views that it embodied and the Joint Committee’s impatience for rapid development of atomic power placed a great deal of pressure on the AEC to show that its reactor programs were producing results.” Walker & Wellock (2010) A Short History of Nuclear Regulation, 1946–2009, U.S. Nuclear Regulatory Commission, NUREG/BR-0175, Rev. 2; p. 7

201 scrutiny (395). But the evolving operating environment was energizing the USAEC’s critics (396).

The USAEC opted to pursue a technical approach to address both the safety concerns and the call for more support of the nuclear industry. The USAEC instituted a practice known as “back-fitting,” in which the staff on the regulatory side of the USAEC demanded upgrades to NPPs being constructed, and those that were operating, to resolve design safety issues (397). In tandem, and in line with its promotional mandate, the

USAEC permitted NPPs to continue to operate until a determination could be made about generic safety concerns – those issues that potentially impacted multiple NPPs – if the

USAEC determined that doing so would not pose an undue risk to public safety.

Not surprisingly, since the 1960’s was early in the development of nuclear energy technologies, the partial quantitative data and operating experience needed to form a firm basis for critical safety decisions was still being developed and verified. Further, the

395 The USAEC, in order to study the effects of nuclear weapons on civilian populations, conducted a variety of tests where they purposively contaminated unsuspecting people with the radioisotopes iodine-131 (131I) and xenon-133 (133Xe) to simulate fallout. For example, in 1949, the USAEC contaminated three towns within a 500,000-acre (2,000 km2) area near the Hanford site. In 1953, the USAEC conducted studies at the University of Iowa on the health effects of 131I administered to newborns and pregnant women. The USAEC conducted studies at the Harper Hospital in Detroit, orally administering 131I to premature and full-term infants to determine if there was differing impacts; and, conducted studies at the University of Nebraska College of Medicine, orally administering 131I to healthy infants to determine the levels of concentration of iodine in the infants' thyroid glands. Goliszek (2003) In the Name of Science; St. Martin's Press, New York. ISBN 978-0-312-30356-3 Welsome (1999) The Plutonium Files: America's Secret Medical Experiments in the Cold War; Delacorte Press 396 “The AEC had become an oligarchy controlling all facets of the military and civilian sides of nuclear energy, promoting them and at the same time attempting to regulate them, and it had fallen down on the regulatory side ... a growing legion of critics saw too many inbuilt conflicts of interest.” Cooke (2009) In Mortal Hands: A Cautionary History of the Nuclear Age; Black Inc.; 252ff 397 An early example of the impact of backfits required by the USAEC would be Humboldt Bay Unit 3, which began operations in 1962; however, by the time it permanently ceased operations in 1976 due to economic reasons, it had been required to make 22 generic issues safety upgrades and 42 plant-specific safety issues upgrades.

202 capability to model possible accident scenarios in computer simulations was only becoming possible. Since there were limited proven safety criteria, design guidelines, and rules for designing, and then reviewing new reactor designs, the USAEC implemented requirements for nuclear reactor vendors to include extremely conservative safety margins, i.e., excess capacity to handle design-basis accidents (398) in designing and constructing NPPs. However, these conservative margins and backfits, many of which had uncertain safety benefits, significantly increased the costs of building, operating, and maintaining NPPs, which resulted in the USAEC’s primary stakeholder (399), the nuclear industry, to question the USAEC’s use of these practices. The industry directed these complaints to the U.S. Congress. In addition, many members of the public questioned the

398 A design-basis accident is a postulated accident that a nuclear facility must be designed and built to in order to withstand loss of safety systems necessary to ensure public health and safety. A beyond design-basis accident is an accident sequence that is possible but was not fully considered in a plant design because it was judged to be too unlikely. USNRC (2019) “Design Basis Accident”; https://www.nrc.gov/reading-rm/basic-ref/glossary/design-basis- accident.html USNRC (2019) “Beyond Design Basis Accident”; https://www.nrc.gov/reading-rm/basic-ref/glossary/beyond- design-basis-accidents.html 399 “Owing to the differing views on who has a genuine interest in a particular nuclear related activity, no authoritative definition of stakeholder has yet been offered, and no definition is likely to be accepted by all parties. However, stakeholders have typically included the following: the regulated industry or professionals; scientific bodies; governmental agencies (local, regional and national) whose responsibilities arguably cover, or ‘overlap’ nuclear energy; the media; the public (individuals, community groups and interest groups); and other States (especially neighbouring States that have entered into agreements providing for an exchange of information concerning possible trans-boundary impacts, or States involved in the export or import of certain technologies or material)”. IAEA (2003) Handbook on Nuclear Law, IAEA, Vienna; https://www.iaea.org/publications/6807/handbook-on- nuclear-law

203 conflicting roles of promoting and regulating nuclear power, and some accused, with some accuracy, the USAEC of being captured by the industry (400).

The perception of regulatory capture was not dispelled by President Nixon’s appointment in 1972 of former Washington governor Dr. Dixy Lee Ray, a marine biologist, to be the first woman to Chair the USAEC. In her 1973 report on recommendations to address the emerging energy crisis (precipitated by the Arab Oil

Embargo), environmental concerns (given voice by activists such as Rachel Carson in her seminal book Silent Spring), and the role of energy in the economic stagnation worsened by climbing interest rates, she proposed, among things, the maximization of “private sector involvement in the conduct, review, and evaluation of the Federal” energy research and development program (401).

The challenges that were inherent in the USAEC’s contradicting roles of promoter and regulator in resolving safety concerns was exemplified by a controversy that came to a head in 1973 with a rulemaking. The USAEC instituted a rule to address significant variances between the emergency core cooling systems (ECCS) required in NPPs to prevent the nuclear fuel from being damaged in the event of significant unanticipated leaks in the primary coolant system (loss-of-coolant accident, LOCA). The results of

400 Economic theory that regulatory agencies may come to be dominated by the industries or interests they are charged with regulating, such that, instead of acting in the public interest, acts to benefit the industry it is supposed to be regulating. Kenton (2019) “Regulatory Capture”; Investopedia; https://www.investopedia.com/terms/r/regulatory- capture.asp 401 Ray also advocated for the creation of an Energy Research and Development Administration (ERDA), which was created the following year when the Energy Reorganization Act of 1974 abolished the USAEC and created in its place the USNRC and ERDA. Ray (1973) “The Nation’s Energy Future – A Report to Richard M. Nixon, President of the United States”; USAEC; https://www.osti.gov/servlets/purl/4384705

204 research performed by the USAEC suggested that ECCS might not always work as designed, although the data were highly uncertain and the conclusions were in dispute by subject-matter experts. To resolve these contentious disagreements, the USAEC held rulemaking hearings with the intent to develop criteria that could be used to verify the effectiveness of ECCS designs. As described by the USNRC’s historical overview (402):

The hearings sorted through conflicting information to establish minimum ECCS performance criteria, but only after a contentious debate. The AEC’s promotional mission, critics claimed, had interfered with regulation and research on ECCS. Press reports alleged that AEC had harassed employees who had argued for stringent safety standards and claimed that the agency halted research that cast doubt on ECCS effectiveness. Whether the AEC had meddled with safety research or not, it was true that safety research had to compete for research dollars with the more popular development programs on the promotional side of the AEC. Lacking important research information, the staff struggled to draw up well-supported criteria. The AEC eventually developed effective performance criteria for ECCS— criteria so stringent that some reactor designers made significant changes to fuel assemblies, and one utility closed an older plant rather than make extensive safety backfits. Nevertheless, the episode cast doubt on the agency’s reputation as an effective safety regulator. Critics claimed that the AEC didn’t take its safety responsibilities seriously and that it favored its mission to promote nuclear power. What was needed, they claimed, was an agency whose sole mission was safety regulation and research.

By 1973, the USAEC had lost the confidence of the policy makers, the public, and the industry; as such, the U.S. Congress opted to try something different.

402 USRNRC (2014) “History”; https://www.nrc.gov/about-nrc/history.html

205 2.4.2.2 U.S. Nuclear Regulatory Commission

The USAEC’s critics claimed victory when the U.S. Congress passed the Energy

Reorganization Act of 1974 (Pub. L. 93-438), which dissolved the USAEC, and reassigned its regulatory functions to the newly created independent agency, the U.S.

Nuclear Regulatory Commission (USNRC) (403), which began operations on January 19,

1975. The USNRC did not have promotional duties, but was rather tasked with overseeing commercial (404) nuclear reactor safety and security, administering reactor licensing and renewal, licensing radioactive materials, radionuclide safety, and managing the storage, security, recycling, and disposal of spent fuel.

Over the next several years after its founding, the USNRC concentrated on developing safety criteria, design guidelines, and rules that were firmly grounded in the best current understanding of nuclear physics and took into consideration lessons-learned from operating experience. While not actively promoting the continued growth of the

U.S. nuclear industries, the USNRC attempted to not be an impediment to its expansion; this was in accordance with the Nixon Administration’s encouragement for the further development of nuclear energy (405). For example, the USNRC typically granted operating licenses to NPPs before the completion of required licensing hearings (406).

403 The USAEC’s nuclear energy promotional duties – and its research and development of nuclear weapons – were assigned to the newly created ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION (ERDA). ERDA was combined with the FEDERAL ENERGY ADMINISTRATION on August 4, 1977, forming the U.S. Department of Energy. 404 The USNRC does not have the statutory authority to regulate military or USDOE nuclear facilities; however, the USNRC has provided “peer reviews” of new U.S. Navy nuclear reactor designs per Congressional direction. 405 Nixon predicted that nuclear energy would provide 30- to 40-percent of U.S. electricity by the early 1990’s. 406 US Congress (1980) “US President's Commission on the Accident at Three Mile Island”; House Committee on Science and Technology. Subcommittee on Energy Research and Production, U.S. Govt. Print. Off.

206 However, there was, and remains, a tension within the USNRC’s staff between two philosophic approaches to the agency’s overarching mission. As stated in the USNRC’s

Strategic Plan (407), its mission is:

The NRC licenses and regulates the Nation's civilian use of radioactive materials to provide reasonable assurance of adequate protection of public health and safety and to promote the common defense and security and to protect the environment. (emphasis added)

The competing perspectives for the best way to accomplish the USNRC’s mission can be summarized as:

1) in as significant consequences could occur from accidents caused by an imperfect

understanding of technical uncertainties, it is incumbent for the USNRC to

aggressively encourage the commercial industry to go above and beyond the

“good enough” standards of reasonable and adequate; alternatively,

2) in as it is impossible to eliminate every risk, it is sufficient to put into place

requirements based on best current knowledge, and then remain vigilant and take

actions only when needed.

While an argument could have been made in the 1970’s and early 1980’s that there was still significant unknowns related to nuclear energy development, most experts agreed that then current light-water reactor technologies were sufficiently mature enough

407 The USNRC’s Strategic Plan was first published in September 1997 (Vol. 1), and is now on the sixth update with Volume 7. USNRC (2018) Strategic Plan, NUREG-1614, https://www.nrc.gov/reading-rm/doc- collections/nuregs/staff/sr1614/

207 that new and unexpected accident scenarios were extremely unlikely (408). By attempting to push the commercial industry to perform at levels exceeding reasonable and adequate, the reality was that in doing so, the USNRC was actually overstepping its authority, and unnecessarily impeding the industry it was formed to oversee, not block. The USNRC’s modus operandi became a tension between excessive regulation and excessive permission, with a unifying thread of limited technical justification for either extreme (409). For the first several years after its formation, the USNRC sought the middle ground – the USNRC focused mainly on developing technically defensible regulations, and took each request by the industry for relief from some requirement on a case-basis.

2.4.2.3 Impact of Three Mile Island Accident

March 28, 1979, marked a sea-change for the U.S. nuclear industry, and the USNRC.

Unit 2 of the Three Mile Island NPP (TMI-2), located on an island in the Susquehanna

River just south of Harrisburg, Pennsylvania, malfunctioned, and ultimately suffered a partial core meltdown, releasing some 43,000 curies of radioactive gases into the atmosphere. While this accident proved to be a body blow to the U.S. nuclear industry – some 40 nuclear reactors that were under construction, and about another 35 that were proposed, were canceled in the aftermath of this accident – the actual release had

408 This assertion has been frequently used by the nuclear industry to justify relaxation of USNRC regulations, including in the area of fire protection. Die, et al. (2015) “Fire PRA Maturity and Realism: A Discussion and Suggestions for Improvement”; PSA 2015; https://www.nrc.gov/docs/ML1503/ML15035A678.pdf 409 Temples (1982) “The Nuclear Regulatory Commission and the Politics of Regulatory Reform: Since Three Mile Island”; Public Administration Review; Vol. 42, No. 4, pp. 355-362

208 negligible effects on the physical health of exposed individuals or the environment (410).

However, just because there was little actual health or environmental impacts did not mean that the public was unconcerned.

The TMI-2 accident also had a significant impact on the USNRC. Over the next several years following the TMI-2 accident, the USNRC ordered an extensive number of backfits (411) aimed at strengthening NPP designs and upgrading equipment requirements, including mandating the installation of extra equipment to mitigate accident conditions.

Among the backfits required were upgrades on fire protection programs, piping systems, containment building isolation requirements, and the reliability of mechanical and electrical components. A particular area of focus by the USNRC was the ability of NPPs to shut down automatically in the event of an accident or severe transient (412); and, a

410 Epidemiology studies of the TMI-2 accident have mostly concluded that there were no observable long-term health effects; and, the major dissenting views have been mostly voiced by opponents of nuclear energy. Hatch; et al. (1990) “Cancer Near the Three Mile Island Nuclear Plant: Radiation Emissions”; American Journal of Epidemiology 132 (3): 397–412 Levin (2008) “Incidence of Thyroid Cancer in Residents Surrounding the Three-Mile Island Nuclear Facility”; Laryngoscope 118 (4), pp. 618–628 411 “This document, NUREG-0737, is a letter from D. G. Eisenhut, Director of the Division of Licensing, NRR, to licensees of operating power reactors and applicants for operating licenses forwarding post-TMI requirements which have been approved for implementation. Following the accident at Three Mile Island Unit 2, the NRC staff developed the Action Plan, NUREG-0660, to provide a comprehensive and integrated plan to improve safety at power reactors. Specific items from NUREG-0660 were approved by the Commission for implementation at reactors. In this NRC report, these specific items comprise a single document which includes additional information about schedules, applicability, method of implementation review, submittal dates, and clarification of technical positions. It should be noted that the total set of TMI-related actions have been collected in NUREG-0660, but only those items that the Commission has approved for implementation to date are included in this document, NUREG- 0737.” USNRC (1980) “Clarification of TMI Action Plan Requirements”; NUREG-0737; https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr0737/final/index.html 412 “A change in the reactor coolant system temperature, pressure, or both, attributed to a change in the reactor’s power output. Transients can be caused by (1) adding or removing neutron poisons, (2) increasing or decreasing electrical load on the turbine generator, or (3) accident conditions.” USNRC (2019) “Transient”, Glossary; https://www.nrc.gov/reading-rm/basic-ref/glossary/transient.html

209 relatively new discipline, that examined the critical role human performance has in safety, which ultimately lead to a emphasis on “safety culture,” led to additional backfits in the areas of training and staffing requirements. In addition, fitness-for-duty programs for NPP workers were established to counter concerns about possible alcohol or drug abuse impacting the ability of these workers to adequately operate the facility during normal and accident conditions.

Emergency preparedness programs were required to be significantly enhanced, including the addition of new requirements for NPPs to provide daily status reports and to notify the USNRC of significant events within specified timeframes. Further, the

USNRC significantly expanded its recently authorized Resident Inspector program so as to station at least two USNRC staff at each NPP – either operating or under construction

– to provide daily surveillance of licensee adherence to NRC regulations (413). Senior

USNRC managers regularly met to evaluate the performance of those NPPs that were considered to be in need of significant additional regulatory attention (414). However, it was the periodic public NPP-specific reports that the USNRC began to publish that was

413 Not only were these inspectors “resident” at the NPP, they also were required to live nearby so that they could arrive at the NPP within an hour of notification of an event. There are about 150 Resident Inspectors currently, down from a high of nearly 400 in the 1980’s. USNRC (2018) “Backgrounder on NRC Resident Inspectors Program”, https://www.nrc.gov/reading-rm/doc- collections/fact-sheets/resident-inspectors-bg.html 414 The USNRC also expanded its international engagement activities, increasing its involvement in intergovernmental organizations like the IAEA and OECD’s NEA, as well as with select NNRAs, to exchange technical information so as to be better aware of emerging nuclear safety issues. (See Footnote 102 in Chapter 1 for a description of an instance where the USNRC failed to act on information from a foreign source.)

210 most damaging to the nuclear industry (415). These Systematic Assessment of Licensee

Performance (SALP) reports periodically consolidated the findings of the various inspections at each NPP, along with USNRC management conclusions about the licensee’s performance and the effectiveness of each NPP’s management in ensuring that the NPP was operated in a safe manner. A poor SALP score could, and did, translate into economic consequences for the utility (416).

In addition to the the USNRC’s investigation, there were several other investigations into the TMI-2 accident, including the “President's Commission on the Accident at Three

Mile Island” (Kemeny Commission) empaneled by President Carter in April 1979.

Chaired by John G. Kemeny, president of Dartmouth College, the twelve member commission conducted public hearings, took depositions, reviewed a library’s worth of documents, and published its report on October 31, 1979, in which it strongly criticized the reactor vendor (Babcock & Wilcox), Metropolitan Edison (the owner/operator), and the USNRC for a variety of lapses and inadequacies, including poor management and complacency. In particular, the Kemeny Commission concluded that fundamental changes were necessary in the organization, procedures, practices, and in the attitudes of the USNRC, and recommended disbanding the USNRC and replacing it with a new

415 These reports could and did impact the fiscal solvency of NPPs that the USNRC labeled as poor performers, since financial institutions would take these reports into consideration when setting bond ratings and whenever the NPP’s owner sought loans. One senior USNRC manager referred to this effect, and the similar one that arose from public meetings with licensees where USNRC managers sought commitments from the licensees to take some action for which there was no explicit regulatory requirement, as “regulation by embarrassment.” 416 “In Massachusetts, the Boston Edison Company's Pilgrim plant operates under incentives primarily based on capacity factor, but also on NRC's SALP process.” National Academies (1992) “Nuclear Power: Technical and Institutional Options for the Future”; pg. 78; https://www.nap.edu/catalog/1601/nuclear-power-technical-and-institutional-options-for-the-future

211 regulatory agency that reported directly to the U.S. President. However, Carter opted instead to reorganize the USNRC, providing increased power and responsibilities to the

Commission’s Chair (the senior-most political appointee) and to the Executive Director of Operations (EDO, the senior-most civil servant member of the staff), but retained the

USNRC’s basic structure.

In sum, following the TMI-2 accident, the USNRC went from being an organization that was focused on creating science-based criteria to design, build, operate, maintain, and decommission a NPP while not being an undue impediment to the nuclear industry, to one that employed a much more robust, even activist, role in vigorously pushing the industry to achieve the highest safety standards, even when there was little technical data available to justify the proposed backfits and demands (417).

However, over the next quarter-century, the USNRC’s operating philosophy slowly swung back towards not being an undue impediment, as additional data validated the perception that it had over-reached following the TMI-2 accident, and it began to relax or rescind requirements that had been pushed through following the accident (418).

To be fair, most of the new and improved safety requirements imposed on the nuclear energy industry in the post-TMI-2 period, either by the USNRC, or those reforms instituted by the industry itself, proved effective, resulting in a commercial nuclear

417 Tellingly, the USNRC started to rescind or modify a large percentage of the TMI-inspired regulations within a decade of their imposition, since they were found to have been excessively expensive to implement while providing an insignificant improvement to safety. 418 “Currently, 76 high priority safety improvements that remain unimplemented exist in at least 62 of the 110 operating nuclear power plants. Even though the NRC "resolved" these issues as far back as 1978, more than half of all power plants have yet to implement the required changes.” Amey (1999) “Who the Hell is Regulating Who? The NRC's Abdication of Responsibility” POGO; https://www.pogo.org/report/1999/09/who-hell-is-regulating-who-nrcs-abdication-of-responsibility/

212 energy industry that is demonstrably safer and more reliable than before the TMI-2 accident. For instance, in the first half of the 1980’s, the average number of unplanned automatic scrams per unit decreased from 7.3 to 4.5 annually, and to nearly zero by 2000.

Capacity factors – the ratio of actual electrical output to the maximum possible electrical output over a given period of time – rose from about 42-percent in 1972 to over 92- percent in 2018, making nuclear energy one of the most reliable baseload energy sources in the U.S. Further, the USNRC has permitted NPPs to reduce some of the excessively conservative margins imposed early on, which has allowed many NPPs to “uprate” their maximum power output by, in some cases, as much as 5-percent, which, since 1977, has added another 7,902-MW of electrical generating capacity – the equivalent of adding the output of eight NPPs (419).

Safety improvements made by nuclear utilities came with actual costs, which further impacted the economic viability of NPPs. For instance, the average time it takes to construct an NPP in the U.S. currently is about eight years, but the Generation I and II reactors were typically built in about half that time. The longer it takes to complete construction, the higher the costs, as exemplified by the historical data on overnight construction costs (OCC) reviewed by Lovering, et al. in 2016:

The existing literature on the construction costs of nuclear power reactors has focused almost exclusively on trends in construction costs in only two countries, the United States and France, and during two decades, the 1970s and 1980s. These analyses, Koomey and Hultman (2007); Grubler (2010), and Escobar-Rangel and Lévêque (2015), study only 26% of reactors built globally between 1960 and 2010, providing an incomplete picture of the economic evolution of nuclear power

419 Nuclear Energy Institute (2019) “Statistics”; https://www.nei.org/resources/statistics

213 construction. This study curates historical reactor-specific overnight construction cost (OCC) data that broaden the scope of study substantially, covering the full cos thistory for 349 reactors in the US, France, Canada, West Germany, Japan, India, and South Korea, encompassing 58% of all reactors built globally. We find that trends in costs have varied significantly in magnitude and in structure by era, country, and experience. In contrast to the rapid cost escalation that characterized nuclear construction in the United States, we find evidence of much milder cost escalation in many countries, including absolute cost declines in some countries and specific eras. Our new findings suggest that there is no inherent cost escalation trend associated with nuclear technology. (Lovering, et al., 2016 (420))

Lovering, et al., found that U.S. construction costs increased significantly, by as much as 200-percent in the post-TMI-2 period; further, as seen by the more recent U.S. nuclear construction efforts, i.e., Units 3 and 4 of the Alvin W. Vogtle Electric Generating Plant

(Plant Vogtle), costs escalations have not slowed. The Plant Vogtle units were originally expected to cost US$14-Billion when construction began in 2013, but the cost estimates had increased to US$25-Billion (421) by 2018, and grid connection isn’t expected before

2021 (422).

420 Lovering, Yip, Nordhaus (2016) “Historical construction costs of global nuclear power reactors”; Energy Policy, Vol 91, p. 371-382; ISSN 0301-4215, https://doi.org/10.1016/j.enpol.2016.01.011. 421 Georgia Power, a subsidiary of Southern Company, is the owner/operator, and has received federal loan guarantees totaling approximately US$12-Billion. Bynum (2019/03/22) “Trump adds $3.7B in support to finish 2 new nuclear reactors”; AP; https://apnews.com/38189fb0550e401da6b339ad9870a007 422 “Findings reveal a significant delay in lead-time, especially for the last generation reactors constructed from 2010s, with ¾ of the sample showing significant construction delays. This results in an escalation of capital costs rather than in a decline. Average OCC of newer reactors is 60% higher than the ones implemented in the earlier stages of the nuclear era. This suggests a discontinuity of the learning curve for both OCC and lead-time, which threats the market and financial sustainability of current and future nuclear energy projects. Although this is a general trend, this discontinuity is country specific and, thus, induced by national policies and regulatory frameworks. Therefore,

214 In addition, on March 27, 2008, South Carolina Electric & Gas (SCE&G) applied for a Combined Construction and Operating License (COL) to build Units 2 and 3 at the

V.C. Summer Nuclear Generating Station, near Jenkinsville, South Carolina. Costs were estimated to be approximately US$9.8-billion for both units, and the units were expected to go on-line in 2017 and 2018, respectively. By 2014, the construction was a year behind schedule, and costs had increased by US$1.2-billion. Early in 2017, the estimated start-up of the units had slipped to 2020 and 2021, respectively. By mid-2017, citing rising costs and delays, SCE&G stopped construction and abandoned the project (423).

Granted, both V.C. Summer and Plant Vogtle had challenges beyond regulatory ones, including the bankruptcy of its nuclear vendor, Westinghouse, but delays were also incurred in order to address evolving regulatory requirements and concerns, including findings of potentially faulty construction of the Vogtle basemat, i.e., the cast-in-place reinforced concrete foundation, about six-feet-thick, that supports the NPP, which delayed the construction for over six-months.

2.4.2.4 Impact of Chernobyl Accident

The next globally-significant nuclear accident occurred about seven years after the

TMI-2 accident, when, on April 26, 1986, Unit 4 of the Chernobyl nuclear station, in the former Ukrainian Soviet Socialist Republic (now Ukraine), suffered an uncontrolled

the role of nuclear technology as an alternative to cope with the need for a decarbonisation of the power sector must be better evaluated, taking into account the real cost impacts of nuclear technology implementation.” Portugal-Pereira, et al. (2018) “Better late than never, but never late is better: Risk assessment of nuclear power construction projects”; Energy Policy, Vol. 120, p. 158-166 423 Crees, (2019) “The failed V.C. Summer nuclear project: A timeline”; https://www.chooseenergy.com/news/article/failed-v-c-summer-nuclear-project-timeline/

215 criticality accident which resulted in an explosion and fire. Ironically, the precipitating event that caused the accident was a safety test simulating a loss of electrical power; however, the scheduled test was delayed, and the oncoming shift supervisor opted to perform the test, even though the oncoming crew was not prepared. Further, the test supervisor failed to follow procedures which, combined with inherent RBMK design flaws and the intentional disabling of several safety systems, resulted in an uncontrolled nuclear chain reaction that caused a steam explosion which ruptured the reactor core.

This was immediately followed by an open-air reactor core fire – RBMK’s are graphite- moderated – which released significant amounts of contamination into the atmosphere.

The accident was finally contained on May 4, 1986 (424).

The USNRC assessed the implications of the Chernobyl accident on U.S. commercial

NPPs, and concluded that no immediate changes to the USNRC's regulations were required:

The NRC published its Chernobyl follow-up studies for U.S. reactors in June 1992 as NUREG-1422. While that report closed out the immediate Chernobyl follow-up research program, some topics continue to receive attention through the NRC's normal activities. For example, the NRC continues to examine Chernobyl's aftermath for lessons on decontaminating structures and land, as well as how people are returned to formerly contaminated areas. The NRC considers the Chernobyl experience a valuable piece of information for considering reactor safety issues in the future. (USNRC, 2018 (425))

424 IAEA (2016) “In Focus – Chernobyl Nuclear Accident”; https://www.iaea.org/newscenter/focus/chernobyl 425 USNRC (2018) “Backgrounder on Chernobyl Nuclear Power Plant Accident”; https://www.nrc.gov/reading- rm/doc-collections/fact-sheets/chernobyl-bg.html

216 For the next fifteen years, the USNRC focused its regulatory efforts on developing rules to facilitate relicensing NPPs for extended periods of operation (426), on licensing new reactors (427), and on making other modifications to its regulatory oversight program to reduce what came to be called “unnecessary regulatory burden” (428). However, following the terrorist attack on September 11, 2001, the USNRC overreach pendulum once again swung in a protective direction.

426 “In 1991, the NRC published safety requirements for license renewal as 10 CFR Part 54. The NRC applied the new rule on several pilot plants to acquire experience and to establish implementation guidance. The rule's scope included all age-related degradation unique to license renewal. However, during the pilot program, the NRC found that many aging effects are dealt with adequately during the initial 40-year license period. The rule did not give enough credit for existing programs to manage plant-aging issues, particularly those under NRC's maintenance rule. The NRC used this information to amend the license renewal rule in 1995. The amended Part 54 process is more efficient, stable and predictable than the previous license renewal rule. In particular, the amended Part 54 focuses on managing the adverse effects of aging. The changes meant to ensure that important systems, structures and components would continue to perform their intended function during the 20-year period of extended operation.” USNRC (2018) “Backgrounder on Reactor License Renewal”; https://www.nrc.gov/reading-rm/doc- collections/fact-sheets/fs-reactor-license-renewal.html 427 “The U.S. Nuclear Regulatory Commission (NRC) revised its regulations in 1989 to establish Title 10 of the Code of Federal Regulations (10 CFR) Part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants,” (Part 52) as an alternative to the existing process for reactor licensing under 10 CFR Part 50 (Reference 1). The NRC updated Part 52 in 2007 (72 FR 49517 and 72 FR 57446) to increase regulatory certainty and stability and to enhance the NRC's regulatory effectiveness and efficiency in implementing its licensing and regulatory approval processes. This new licensing and regulatory approval process encouraged design standardization and provided a more predictable licensing process by resolving safety and environmental issues before authorizing plant construction. Under Part 52, an applicant may seek a combined license (COL) that provides authorization to construct and operate— subject to specific conditions—a nuclear power plant. Part 52 also includes the design certification (DC) process to approve a standard reactor design, and the early site permit (ESP) process to approve the suitability of a site for a nuclear power facility. The process also includes provisions for approval to perform limited construction activities before a COL is issued under a limited work authorization (LWA).” USNRC (2013) “New Reactor Licensing Process Lessons Learned Review: 10 CFR Part 52”; https://www.nrc.gov/docs/ML1305/ML13059A239.pdf 428 “Regulatory criteria that go beyond the levels that would be reasonably expected to be imposed on licensees given that regulations apply to conditions that incorporate normal operation and design-basis conditions.” USNRC (2019) “Unnecessary regulatory burden”; Glossary; https://www.nrc.gov/reading-rm/basic- ref/glossary/unnecessary-regulatory-burden.html

217 2.4.2.5 Impact of 9/11

Following the 9/11 terrorist attack, the USNRC put into place stringent security requirements, mandating that NPPs upgrade the physical security at the facilities by the addition of physical barriers, intrusion detection and surveillance systems, increased security presence, more restrictive site access controls, and routine demonstrations of the capability of the security force to defend against “Design Basis Threats,” a comprehensive set of scenarios that postulate an attack on the facility by peer- adversaries (429). These realistic scenarios are developed, and updated, using assessments of the tactics and techniques used by actual terrorist groups and organizations, and validate the NPP’s security force by use of representative force-on-force exercises.

2.4.2.6 Nuclear Renaissance

In 2005, the U.S. Congress passed the Energy Policy Act of 2005, which provided the commercial nuclear energy industry generous financial incentives, including loan guarantees and cost-overrun support. The EPA2005 was credited with what came to be known as the “nuclear renaissance.” Over 30 new reactors were proposed following the passage of EPA2005. As a consequence, the USNRC created the Office of New Reactors to handle the additional effort needed to support reviewing so many new applications, and increased its staff from about 2,700 when 9/11 occurred, to almost 4,000 by

2011 (430). The pendulum swung from imposition of new security requirements to

429 USNRC (2019) “Frequently Asked Questions About NRC's Design Basis Threat Final Rule”; https://www.nrc.gov/security/faq-dbtfr.html 430 Lochbaum (2016) “Nuclear Merger”; Union of Concerned Scientists; https://allthingsnuclear.org/dlochbaum/nuclear-merger

218 facilitating the reviews of new reactor licensing. As USNRC senior management described it, the USNRC was not to be the cause of impeding the Renaissance (431).

However, EPA2005 also repealed the Public Utility Holding Company Act of 1935

(PUHCA), allowing utility ownership to once again be consolidated into fewer and larger utilities (432). This consolidation of utilities, coupled with the impact fracking (433) was having on natural gas prices (434), led utilities to abandon constructing NPPs, opting instead to build natural gas-fueled power plants. Consequently, virtually all of the license applications filed with the USNRC following the passage of EPA2005 were suspended or cancelled by 2017 (435). As a result, the USNRC has significantly reduced its hiring, and has offered financial incentives for staff to retire or otherwise leave, and has abolished the Office of New Reactors, reconsolidating remaining staff in other Offices (436).

431 Personal recollection of discussions while employed at the USNRC. 432 Conrad (2012/07/27) “The Coming Wave of Utility Consolidation”; Investing Daily; https://www.investingdaily.com/15492/the-coming-wave-of-utility-consolidation/ 433 Hydraulic fracturing (fracking) is a process in which high pressure fluids and solid materials, like sand, are injected into a well to fracture deep-rock formations so that natural gas and petroleum will flow more freely. The first commercially successful application was in 1950. Shellenberger, et al. (2012) “Where the Shale Gas Revolution Came From – Government's Role in the Development of Hydraulic Fracturing in Shale”; The Breakthrough Institute; https://thebreakthrough.org/issues/energy/where-the-shale-gas-revolution-came-from 434 By 2018, fracking in the Permian Basin in west Texas caused the production of excess natural gas with oil such that prices turned negative. DiSavino (May 22, 2019/05/22) “U.S. natural gas prices turn negative in Texas Permian shale again”; Yahoo Finance; https://finance.yahoo.com/news/u-natural-gas-prices-turn-122953468.html 435 Plumer (2017/07/31) “U.S. Nuclear Comeback Stalls as Two Reactors Are Abandoned”; New York Times; https://www.nytimes.com/2017/07/31/climate/nuclear-power-project-canceled-in-south-carolina.html 436 Daily Energy Insider (2019/10/17) “Nuclear Regulatory Commission announce merger of Nuclear Reactor Offices”; https://dailyenergyinsider.com/news/22312-nuclear-regulatory-commission-announce-merger-of-nuclear- reactor-offices/

219 2.4.2.7 Impact of Fukushima Dai-ichi

As the USNRC was achieving a new normal in its oversight, on March 11, 2011, a

9.0-magnitude earthquake, followed by a 45-foot tsunami, struck Japan and caused extensive damage, including to the Fukushima Dai-ichi NPP. The USNRC’s immediate response rivaled its response to TMI-2.

Within 24-hours of the Fukushima event, the USNRC detailed two senior staff to assist the U.S. Embassy in Tokyo, and within 72-hours, dispatched additional staff to

Japan, where an USNRC presence was maintained through the end of the year (437).

Further, the USNRC staffed up its emergency Operations Center on a 24-hours basis, as if the accident had occurred domestically, and maintained the around-the-clock staffing into the summer of 2011.

In April 2011, the Commission created a task force of senior USNRC managers and technical experts to evaluate the consequences of the Fukushima Dai-ichi accident, and to review existing USNRC regulations to determine if there were gaps requiring actions to ensure the safety of U.S. NPPs (438). This task force recommended in July 2011 a dozen wide-ranging areas for regulatory enhancements, six event-specific actions, and the creation of the Japan Lessons Learned Project Directorate to facilitate implementation of

437 It should be noted that, even though it quickly became apparent that the radiological consequences to the U.S. would be minimal, at most, the USNRC’s Chairman, Gregory Jaczko, declared an emergency and asserted authorities granted the Chairman by the Energy Reorganization Act. This led to accusations by the USNRC and his fellow Commissioners that Jaczko contributed to the panic in Japan, that he lied to the U.S. Congress about conditions at Fukushima Dai-ichi, and that he directed the USNRC staff to minimize the impacts a similar event would have on U.S. NPPs. Casto (2018) Station Blackout: Inside the Fukushima Nuclear Disaster and Recovery; Radius Book Group; ISBN-10: 1635764025 438 USNRC (2019) “Japan Lessons Learned”; https://www.nrc.gov/reactors/operating/ops-experience/japan- dashboard.html

220 the task force recommendations, which the Commission approved (439). Further, the

USNRC issued three Orders in March 2012, requiring U.S. reactors to:

1) Obtain and protect additional emergency equipment, such as pumps and

generators, to support all reactors at a given site simultaneously following a

natural disaster (implemented under the industry program “Diverse and Flexible

Mitigation Capability,” FLEX);

2) Install enhanced equipment for monitoring water levels in each plant's spent fuel

pool; and,

3) Improve/install emergency hardened venting systems that can relieve pressure in

the event of a serious accident (only for designs similar to Fukushima) (440).

While several of the task force’s recommendations, i.e., Tier 1 recommendations, appropriately addressed potential challenges to the safety of NPPs, the Tier 2, Tier 3, and non-Tiered Activities, after extensive internal discussions, as well as push-back from the industry, USNRC management determined that the existing regulations and requirements

(“regulatory framework”) were adequate and that no further regulatory action or analysis was needed. Further, the Mitigation of Beyond-Design-Basis Events rule, effective on

September 9, 2019, significantly reduced the more extreme proposals the USNRC had made in 2012, opting to rely on actions already taken (441).

439 USNRC (2019) “Post-Fukushima Safety Enhancements”; https://www.nrc.gov/reactors/operating/ops- experience/post-fukushima-safety-enhancements.html 440 USNRC (2019) “Final Rule: Mitigation of Beyond-Design-Basis Events”; https://www.nrc.gov/docs/ML1905/ML19058A006.html 441 “The NRC has taken significant action to enhance the safety of reactors in the United States based on the lessons learned from this accident.” USNRC (2018) “Japan Lessons Learned”; https://www.nrc.gov/reactors/operating/ops-experience/japan- dashboard.html

221 It should be noted that the World Health Organization (WHO) extensively studied both the Chernobyl and Fukushima accidents. For Chernobyl, WHO found no significant long-term health impacts from the accident (442). Further, WHO concluded that most of the impacts from nuclear accidents have been to public confidence and the economic consequences resulting from the recovery, including those from the premature shut- downs of the impacted facilities. Likewise, WHO’s assessment (443) of the health impacts due to the Fukushima Dai-ichi accident concluded that “for the general population inside and outside of Japan, the predicted risks are low and no observable increases in cancer rates above baseline rates are anticipated.”

While the USNRC had repeatedly demonstrated a willingness to impose significant regulatory burden on the U.S. nuclear industry, much of which had to be weakened after further evidence failed to support the demands, it has also shown itself to be capable of being too amiable towards the industry it is supposed to be overseeing. For instance, in

1987, the U.S. Congress’s House Committee on Interior and Insular Affairs’

Subcommittee on Oversight and Investigations characterized the USNRC as being “too cozy with industry” (444).

442 WHO (2016) “Chernobyl: Thirty Years On”; https://www.who.int/ionizing_radiation/chernobyl/en/ 443 WHO (2016) “FAQs: Fukushima Five Years On”; https://www.who.int/ionizing_radiation/a_e/fukushima/faqs- fukushima/en/ 444 The report concluded that: “First, the Nuclear Regulatory Commission has not maintained an arms length posture with the commercial nuclear power industry. Second, the NRC has, in some critical areas, abdicated its role as a regulator all together.” U.S. Congress, Subcommittee on Oversight and Investigations, House Committee on Interior and Insular Affairs (1987) “NRC Coziness with Industry: An Investigative Report”; 100th Cong., 1st Sess.

222 In response to the charges of being “too cozy,” the USNRC enacted internal changes following the TMI-2 accident, in which it strengthened its enforcement policies, including implementing more severe criminal penalties, such as more stringent fines with an increase from $5,000 to $100,000 per violation, and even imprisonment, for those that violated USNRC regulations. However, in the late 1980’s, the USNRC asserted that it had discretion not to enforce requirements that had been imposed on licensees as conditions of operation; and, by the mid-1990’s, the USNRC has exercised this discretion hundreds of times (445). Moreover, this discretion was unevenly applied, allowing some critics of the USNRC to charge that it was being “arbitrary and capricious” in its actions (446).

It should be noted that one of the reasons the USNRC continues to use enforcement discretion is that it is extremely burdensome to change regulations. As such, discretion is sometimes used in place of correcting regulations.

There have been multiple court challenges by the industry and members of the public over rules and regulations that the USNRC promulgated on the basis that they were

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” (447) but it was rare for the USNRC to lose these legal challenges. This does not

445 It should be noted that enforcement discretion is still being utilized by the USNRC. Byrne & Hoffman (1996) Governing the Atom: The Politics of Risk; Transaction Publishers, p. 163. 446 An example of these accusations would include a July 30, 2008, letter from David Lochbaum, the Director of the Nuclear Safety Project at the Union of Concerned Scientists, to Cynthia Carpenter, the Director of the USNRC’s Office of Enforcement, which described the differing treatment of similar violations at two different NPPs. Lochbaum (2008) Letter – “ARBITRARY AND CAPRICIOUS ENFORCEMENT ACTION / INACTION”; https://www.nrc.gov/docs/ML0821/ML082190231.pdf 447 Section 706(2)(A) of the Administrative Procedure Act (APA) instructs courts reviewing regulations to invalidate any agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

223 necessarily mean that the plaintiffs’ cases were without merit, but rather that there is typically a presumption that the agency, as the acknowledged technical expert, had sufficient basis for the action of concern.

To summarize the literature on the USAEC and USNRC, the development of the U.S. nuclear industry has been characterized by interactions with the national regulator – initially the USAEC and now the USNRC – that frequently have involved patterns of either regulatory overreach or regulatory capture. While the USNRC has been called

(and stylized itself as) the premiere nuclear safety regulator in the world (448), it has repeatedly demonstrated inconsistencies in how it regulates, and its reluctance in its willingness to listen to differing opinions. The USNRC has performed laudable work in ensuring the commercial nuclear industry is safe and secure, but it has done so frequently by regulatory overreach and then retrenchment, seriously impacting the commercial industry by a lack of consistency, objectivity, and predictability. Since the role of the regulator is to ensure an acceptable level of nuclear safety commensurate with the known risk, a more dispassionate and nonpartisan approach could have accomplished the same levels of safety while allowing USAEC’s Seaborg’s prediction of 1,000 reactors to be closer to reality (or may have allowed the U.S. to have reached parity with France’s 70-

law.” The arbitrary-or-capricious test is used by judges when reviewing the factual basis for agency rulemaking. Courts can overturn agency rules if they find the underlying rationale or factual assertions to be unreasonable. Historically, federal courts have deferred to an agency’s expertise when making predictive judgments based on scientific or technical determinations. Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983); Zero Zone, Inc. v. U.S. Dep’t of Energy, 832 F.3d 654, 668 (7th Cir. 2016); Nat. Res. Def. Council v. U.S. Nuclear Regulatory Comm’n, 823 F.3d 641, 649 (D.C. Cir. 2016). 448 “The NRC Is the Global Gold Standard and Should Keep Leading.” Nuclear Energy Institute (2019) “The NRC Can Help Us Get to A Clean Energy Future”; https://www.nei.org/news/2019/nrc-can-help-clean-energy-future

224 percent share of the electricity generated, which could have achieved a third of Seaborg’s prediction).

2.4.3 Nuclear Power in U.S.S.R / Russian Federation

There are some remarkable parallels between the U.S. and the U.S.S.R. concerning their respective development of nuclear energy technologies and their respective evolutionary approaches to oversight. However, unlike the U.S., but like most other

States that utilize nuclear energy, the U.S.S.R. (and subsequently the Russian Federation) kept the commercialization of nuclear energy a government monopoly.

On June 26, 1953, the U.S.S.R. established its equivalent to the USAEC, the Ministry of Medium Machine-Building Industry of the CCCP (Министерство среднего

машиностроения СССР, MCM CCCP, Minsredmash) to direct and oversee the development of the U.S.S.R.’s nuclear industry and nuclear weapons (449). In addition to building a series of experimental and test reactors (much like the USAEC was doing),

MCM CCCP also established a series of nuclear cities – Naukograds (450) – including

Obninsk, located about 110 kilometers southwest of Moscow, where AM-1 was built (451).

Since the MCM’s portfolio included military uses of nuclear technologies, in 1956 the U.S.S.R. State Committee on the Utilization of Atomic Energy (Государственный

449 On September 11, 1989, the MCM was renamed the Ministry of Atomic Energy and Industry of the USSR (Министерство атомной энергетики и промышленности СССР). 450 “Science cities,” naukograds (наукогра́ д) were mostly secret, mostly closed cities with high concentrations of military-related research and development facilities in the U.S.S.R., many of which were built by forced labor from the Soviet Gulag. The closest U.S.-equivalent would have been the Manhattan Project facilities such as Los Alamos, Hanford, and Oak Ridge. 451 AM-1 was not the U.S.S.R.’s first reactor. Physics-1 (F-1) research reactor achieved initial criticality on December 25, 1946. Operated by the Kurchatov Institute in Moscow, it was the world's oldest operating reactor when it was permanently shut down in November 2016.

225 комитет по использованию атомной энергии CCCP, GKAE), was established.

GKAE was responsible for oversight of civilian nuclear energy programs, and was the organization that participated in international cooperative efforts on nuclear safety. Like the USAEC, the GKAE was also extremely promotional in its outlook, since a successful nuclear energy program was seen as both a demonstration of the superiority of Soviet science and technology capabilities, and as a means to support the continued industrialization of the U.S.S.R. (452). Also as with the USAEC, nuclear safety oversight was very much a secondary concern (453).

Like the U.S., the U.S.S.R. experimented with a variety of designs for its commercial reactors, but the majority are variants of three models. These have included the LWGR successors to AM-1, RBMKs (454), 13 of which are still operating; sodium-cooled fast breeder reactors, two of which are presently operating with another seven planned (455);

452 “Nuclear power goods are a prestige product of the USSR, representing a frontier of high technology and industrial development.” Duffy (1979) “Soviet Nuclear Energy: Domestic and International Policies”; RAND; R-2362-DOE, p. 18; https://www.rand.org/content/dam/rand/pubs/reports/2009/R2362.pdf 453 “The Soviets even take a rather cavalier attitude toward safety, siting nuclear power plants close to population centers for convenience in transmission and eliminating from their plant design the costly protective containment structures built around reactor cores in the west.” ibid, p. 29 454 A scaled-down RBMK variant is the 12-MWe EGP-6, three of which are still operating at the Bilibino NPP in Bilibino, Chukotka Autonomous Okrug, Russian Federation. Bilibino is the smallest and the northernmost operating NPP; however, it is planned to be replaced by the recently launched floating nuclear power station Akademik Lomonosov. World Nuclear News (2016/10/07) “Work starts on on-shore infrastructure for Russian floating plant”; http://www.world-nuclear-news.org/WR-Work-starts-on-on-shore-infrastructure-for-Russian-floating-plant- 0710165.html 455 The first commercial prototype fast neutron reactor, BN-350, began operation on July 15, 1973, at Shevchenko (now Aktau), Kazakhstan, and was permanently shut down on April 21, 1999. It provided 135-MW of electricity, and was also used for desalination (120,000 m3 fresh water/day), and for plutonium production. Following the collapse of the U.S.S.R., a lack of operational funding forced its closure.

226 and, the most numerous variant, the vodo-vodyanoi energetichesky reaktor (водо-

водяной энергетический реактор, water-water power reactor, VVER), a PWR design originally developed in the 1950’s by the U.S.S.R. The first prototype VVER-210 began commercial operation on December 31, 1964, at the Novovoronezh Nuclear Power Plant; and, there are currently 20 VVERs of various vintages operating in the Russian

Federation, with eight under construction by OKB Gidropress (456). There are about

50 VVERs operating outside the Russian Federation, and 18 VVERs being built in various States (457).

In addition, the Russian Federation is currently investing heavily in the development of barge-mounted floating NPPs, with the first FNPP, the Akademik Lomonosov

(Академик Ломоносов, Плавучие АЭС), presently undergoing pre-operational testing.

Intended to produce electricity and provide district heating for remote locations, the

FNPP has two 35-MWe KLT-40S reactors (a variant of the KLT-40 used on Russian

456 A subsidiary of the Russian Federation’s state nuclear energy corporation Rosatom, OKB Gidropress (опытно- конструкторское бюро [ОКБ] Гидропресс, experimental design bureau hydropress) is involved in the design, development, and production of nuclear reactors, particularly the VVER series. 457 States with operating VVERs include Armenia (Metsamor, VVER-440/270); Bulgaria (Kozloduv, 4 VVER- 440/230); PRC (Tianwan, 2 VVER-1000/428, 2 VVER-1000/428M; Xudabao, 2 VVER-1200); Czech Republic (Dukovany, 4 VVER 440/213, Temelin, 2 VVER-1000/320); Finland (Loviisa, 2 VVER-440/213); Hungary (Paks, 4 VVER-440/213); India (Kudankulam, 2 VVER-1000/412); Iran (Bushehr, VVER-1000/446); Slovakia (Bohunice, 2 VVER-440/213; Mochovce, 2 VVER-440/213); Ukraine (Khmelnitskiy, 2 VVER-1000/320; Rovno, 2 VVER-440/213, 2 VVER-1000/320; South Ukraine, VVER-1000/302, VVER-1000/338, VVER-1000/320; Zaporizhzhia, 6 VVER-1000/320). States with VVERs under construction or planned include Bangladesh (Rooppur, 2 VVER- 1200/523); Belarus (Belarusian, 2 VVER-1200/491); PRC (Tianwan, 2 VVER-1200); Finland (Hanhikivi, VVER-1200/491); Hungary (Paks, 2 VVER-1200/517); India (Koodankulam, 2 VVER-1000/412); Iran (Bushehr, 2 VVER-1000/528); Slovakia (Mochovce, 2 VVER-440/213); Turkey (Akkuyu, 4 VVER-1200/513); World Nuclear Association (2019) “Reactor Database”; https://www.world-nuclear.org/Information- Library/Facts-and-Figures/Reactor-Database.aspx

227 Federation nuclear-powered icebreakers), which use seawater as the coolant. FNPPs (458) are intended for both domestic use and foreign sales, with Sudan being one of the first

States to have signed a letter of intent for a future FNPP.

When the Chernobyl disaster occurred, the U.S.S.R.’s government was forced to both acknowledge this catastrophic failure and – at least internally – its implications about the superiority of the Soviet model, and to reconsider the necessity for a dedicated nuclear energy regulatory and oversight agency. To address this newly acknowledged need, the

Ministry of Atomic Energy (Министерство атомной энергетики СССР, Minatom) was created. Following the dissolution of the U.S.S.R., Minatom continued its role until

March 9, 2004, when it was renamed the Federal Agency on Atomic Energy, Rosatom,

In 1992, the Russian Federation government established the State Committee for

Nuclear and Radiation Safety (Государственный комитет по ядерной и

радиационной безопасности, Gosudarstvennyy komitet po yadernoy i radiatsionnoy bezopasnosti – Gosatomnadzor, GAN), which was responsible for: licensing, regulating,

458 As discussed above, the ANPP’s MH-1A (Sturgis), was the first purpose-built floating NPP, and powered operations in the Panama Canal from 1968 until 1976. The U.S. electric utility Public Service Electric and Gas Company (PSE&G) ordered a 4-unit Atlantic NPP, to be contained within a lagoon of a man-made island off the coast of New Jersey. The NPP was to be built by Offshore Power Systems (OPS), a joint venture between Westinghouse Electric Company (reactor vendor) and Newport News Shipbuilding and Drydock (floating plant vendor). OPS received letters of commitment from two other nuclear utilities, but ultimately the plants were canceled. In addition to the Russian Federation, the PRC is actively developing FNPP technology, and plans to launch some 20 in the next decade. Nguyen (2018/11/21) “China's Planned Floating Nuclear Power Facilities in South China Sea: Technical and Political Challenges”; Maritime Issues, http://www.maritimeissues.com/environment/china39s-planned- floating-nuclear-power-facilities-in-south-china-sea-technical-and-political-challenges.html Minter (2019/08/15) “The Next Chernobyl Could Be at Sea”; Bloomberg; https://www.bloomberg.com/opinion/articles/2019-08-16/russia-china-are-leading-push-for-floating-nuclear- power-plants

228 and ensuring the operational safety of commercial nuclear facilities; for safety in transport of nuclear materials; and, for nuclear materials accounting. However, on some occasions when GAN took actions against NPPs operators, Minatom overrode these actions. Thus, GAN did not have sufficient autonomy or authority to be an adequate regulator. In 2007, Minatom was renamed as the State Nuclear Energy Corporation

(Rosatom), a non-profit company that holds all Russian Federation nuclear assets, including more than 350 companies, including all NPPs. In addition, Rosatom has become the leading provider of NPPs globally, with about 40-percent of the NPPs under construction globally being built by Rosatom.

In 2004, GAN was moved into the Federal Ecological, Technological & Atomic

Supervisory Service, Rostechnadzor. Through incorporating GAN, Rostechnadzor has enjoyed a significant increase in its safety mandate, overseeing nuclear safety and licensing nuclear energy facilities, and supervising nuclear and radiation safety of nuclear and radiologically hazardous installations, including supervision of nuclear materials accounting, control and physical protection. According to the IAEA 2014 IRRS review,

Rostekhnadzor has “become an effective independent regulator with a professional staff.”

Since Rostechnadzor was formed, nuclear safety instances at Russian NPPs are down, as well as workers’ occupational radiation exposures (459).

However, it should be noted that Rosatom and Rostechnadzor have a very close relationship, with Rostechnadzor usually providing the regulatory framework, as well as

459 IAEA (2013) “Integrated Regulatory Review Service (IRRS) Follow-Up Mission to the Russian Federation”; https://www.iaea.org/sites/default/files/documents/review-missions/irrs_russian_federation_2013.pdf

229 assistance, to the various States’ NNRAs that Rosatom sells to. This calls into question

Rostechnadzor’s autonomy.

2.4.4 Nuclear Power in Canada

Canada has had a robust nuclear energy program since 1942 when the U.K.’s Tube

Alloys project established the joint British-Canadian Montreal Laboratory in Quebec, under the administration of the National Research Council of Canada, to continue research into nuclear weapons and other technologies. On September 5, 1945, the first self-sustained nuclear reaction outside the U.S. was achieved when the Zero Energy

Experimental Pile (ZEEP) test reactor at Chalk River, Ontario, achieved criticality.

Originally intended to produce plutonium for nuclear weapons, ZEEP was utilized for basic research and radioisotope production until it was shut down in 1970. A heavy- water moderated reactor that used natural uranium as fuel, ZEEP’s design supported the development of the 200-MW National Research Experimental (NRX) research reactor in

1957.

In 1954, the Atomic Energy of Canada Limited (AECL), a Canadian federal Crown corporation incorporated in 1952, partnered with the Hydro-Electric Power Commission of Ontario, to build Canada's first nuclear power plant, the Nuclear Power Demonstration

(NPD), which used the indigenously-designed CANDU (CANada Deuterium Uranium) reactor. NPD began commercial operation in 1962, and was followed by the 200-MWe

Douglas Point CANDU in 1968, and then by several evolutionary design generations of the CANDU, including the 600-MWe CANDU-6, 900-MWe CANDU-9, and 1,200-

MWe Advanced CANDU Reactor, ACR. In 2011, the CANDU design division was

230 divested, purchased by the Canadian company SNC-Lavalin Group Inc. for CA$15- million (460).

With the Canadian’s Parliament passage of the Atomic Energy Control Act in 1946, the Atomic Energy Control Board (AECB, Régie de energie atomique), was founded.

The act declared that nuclear energy is essential to Canada’s national interest, and therefore under the exclusive jurisdiction of the national government; hence the establishment of the AECL as a Crown corporation. In 2000, the Nuclear Safety and

Control Act replaced the AECA1946 with more explicit legislation to regulate the activities of the Canadian nuclear industry. The NSCA2000 also provided for the establishment of the Canadian Nuclear Safety Commission (CNSC, Commission canadienne de sûreté nucléaire) which replaced the AECB. In addition to regulating

NPPs and nuclear research facilities, the CNSC regulates medical and industrial uses of nuclear material, and the operation of uranium mines and refineries.

In 2007, the CNSC notified AECL that it was in violation of its license for the Chalk

River Laboratories (CRL) NRU nuclear reactor, which was then shut down for an extended period to perform safety upgrades. This extended outage created a critical shortage of medical radioisotopes (461); and, in response, the Canadian Parliament passed emergency legislation overriding the CNSC's ruling, and ordered the reactor to be restarted, which it did on December 16, 2007. Subsequently, the Prime Minister

460 SNC-Lavalin established a subsidiary company, Candu Energy Inc., to market the CANDU reactors. McClelland & Mayeda (2011/06/29) “Canada Sells AECL's CANDU Reactor Division to SNC-Lavalin”; Bloomberg; https://www.bloomberg.com/news/articles/2011-06-29/canada-sells-aecl-s-candu-reactor-division- to-snc-lavalin-1- 461 Canada produces about 60-percent of the global supply of medical radioisotopes.

231 dismissed the CNSC’s President and CEO over this instance, even though a report by the government’s Auditor General found that it was the government’s funding decisions that resulted in AECL’s decision to delay necessary upgrades and maintenance, which led to the safety issue (462). While ultimately accountable to Parliament, the CNSC was established as an independent regulator.

2.4.5 Nuclear Power in the U.K.

The U.K. formed a counterpart to the USAEC in 1954, the U.K. Atomic Energy

Authority (UKAEA), with a mandate similar to that of the USAEC – to develop military applications and to promote commercial uses. The UKAEA brought its first nuclear power station, Calder Hall, with four 60-MWe Magnox reactors (463), on-line in 1956, as the world’s first nuclear power station to produce industrial-scale electricity. However,

Calder Hall’ss primary purpose until 1964 was to produce weapons-grade fissile materials, with electricity production a secondary role. In 1964, its primary function became electricity generation, with plutonium production a secondary function. After

April 1995, Calder Hill stopped producing fissile materials for the U.K.’s military, instead transferring over to the exclusive production of commercial electricity until it was

462 O'Neill (2008/01/10) “Auditor-General's report identified 'deficiency' at AECL” The National Post, p. A1 463 Initially codenamed “PIPPA” (pressurised Pile Producing Power and plutonium) by the UKAEA to signify their dual purposes of producing energy and weapons-grade fissile materials, magnox (magnesium non-oxidising) reactors were pressurized, carbon dioxide-cooled, graphite-moderated reactors using unenriched uranium fuel in a magnox cladding. There were 26 magnox units built at 11 stations in the U.K., and two exported: Tōkai Mura, Japan, which operated from 1966 to 1998; and, Latina, Italy, which operated from 1963 to 1987. North Korea developed its own magnox reactors, including a 5-MWe experimental reactor at Yongbyon, which operated from 1986 to 1994 and restarted in 2003. The DPRK also began, but never completed, construction of a 50-MWe reactor at Yongbyon and a 200-MWe reactor at Taechon, which were based on the U.K.’s magnox design. The last operating U.K. magnox unit, located at the Wylfa Nuclear Power Station in Anglesey, Wales, is scheduled to be permanently shut down December 30, 2015.

232 finally shutdown in 2003. Presently, there are seven NPPs with 15 reactors in the U.K., and all but one (Sizewell B) are GCRs. Another 10 reactors are planned.

U.K.’s Atomic Energy Authority Act of 1986 began the process of privatizing the

UKAEA, requiring it to become self-financing, and to conduct business as though it were a commercial enterprise. The AEAA was amended again in 1995, transferring the more commercial aspects of the UKAEA’s activities to a publicly traded company AEA

Technology. However, the UK's research and development nuclear facilities remained as part of the UKAEA, and the UKAEA began to specialize in decommissioning and site remediation. The Energy Act 2004 established the Nuclear Decommissioning Authority

(NDA), which took ownership and responsibility for the liabilities relating to the cleanup of UK nuclear sites on April 1, 2005, and the UKAEA became a contractor for the NDA for the decommissioning work. On April 1, 2008, the UKAEA became UKAEA

Limited, a wholly owned subsidiary of the NDA. In October 2009, Babcock International

Group plc acquired UKAEA Limited (464).

In 2008, the U.K. Government conducted a review of its nuclear regulatory regime, and concluded that there was a need to create a new, sector-specific regulator – the Office for Nuclear Regulation (ONR), which became an independent public corporation in April

2014. Although the ONR is statutorily a relatively new organization, it has a well- seasoned workforce. However, the relatively small size of the U.K. nuclear industry, as well as the uncertainties as to whether new construction will replace the existing NPPs,

464 UKAEA, https://www.gov.uk/government/organisations/uk-atomic-energy-authority

233 the degree of autonomy and authority the ONR will be able to assert remains to be seen (465).

2.4.6 Nuclear Power in France

France followed the lead of the other Allied powers (466) and created the Commissariat

à l’énergie atomique (Commission for Atomic Energy, CEA) in 1945, which succeeded in bringing France's first nuclear power plant, Marcoule G1 (467), operational in 1956.

Similar to the nuclear power programs in the U.S., the U.S.S.R. and the U.K., the French program served both commercial and military purposes. France, having few natural resources to power its industry and society, has subsequently invested heavily in nuclear energy, and has 58 operating plants, plus one under construction, supplying some 58- percent of the State’s electricity.

On June 13, 2006, the Autorité de sûreté nucléaire (Nuclear Safety Authority, ASN) was established by law 2006-686 as the independent nuclear regulatory authority,

465 ONR (2016) “Office for Nuclear Regulation Strategic Plan, 2016–2020”; http://www.onr.org.uk/documents/2016/strategic-plan-2016-2020.pdf 466 It should be noted that Canada has had a robust nuclear energy program since the 1940’s, and has developed several design generations of its indigenous CANDU (CANada Deuterium Uranium) reactor, a pressurized heavy water (deuterium oxide) reactor that uses unenriched uranium fuel. The CANDU designs, created by Atomic Energy of Canada Limited (AECL), a Canadian federal Crown corporation incorporated in 1952, in conjunction with several other companies, have evolved from the Zero Energy Experimental Pile (ZEEP) experimental reactor, which first went critical in 1945, to the Nuclear Power Demonstration (NPD) CANDU prototype in 1962, the 200-MWe Douglas Point CANDU (1968-1984), and then successive generation of CANDUs, i.e., 600-MWe CANDU-6, 900- MWe CANDU-9, and 1,200-MWe Advanced CANDU Reactor, ACR. While Canada supplied uranium for the Manhattan Project, it did not develop an indigenous nuclear weapons program like the U.S.S.R., U.K., and France did. 467 The initial French reactor design – UNGG (Uranium Naturel Graphite Gaz) – paralleled that of the U.K. gas- cooled magnox design, with the major differentiation between the designs being that magnox has a vertical fuel rod orientation while the UNGG’s fuel rods had a horizontal orientation, similar to that of the CANDU design. All of the UNGG reactors have been permanently shut down.

234 overseeing nuclear safety and radiation protection activities. Like Rostechnadzor, ASN works closely with the NNRAs of the States that have purchased French reactors on their regulatory framework, as well as providing technical assistance to States that have

French-made reactors.

2.4.7 Nuclear Safety Issues

While safeguards are a vital component of nuclear safety, it is not the primary focus of this dissertation – nuclear safety governance is. As described above, nuclear power plants were first constructed to provide fissile materials for nuclear weapons, not electricity for the commercial consumers in the State. In the U.S., the Atomic Energy Act of 1946 transferred authority for the development of nuclear technologies from the U.S.

Army to the newly created U.S. Atomic Energy Commission (USAEC). However, the

USAEC had the dual role of continuing to develop nuclear weapons and to promote the peaceful uses of nuclear energy. The USAEC’s regulatory oversight function was significantly constrained by the overarching promotion mandate. Similar concerns existed in the other States that were pursuing the development of nuclear technologies.

Thus, there was a lessened emphasis on safety and more on sponsorship. Unsurprisingly, the dual roles of the agencies led to multiple significant accidents, especially in the early decades.

Most people today are at least passingly familiar with the Three Mile Island Unit 2

(TMI-2) partial meltdown on March 28, 1979, the fire and meltdown of Reactor Number

4 of the Chernobyl Nuclear Power Plant in what was then the Ukrainian SSR on April 26,

1986, and the March 11, 2011, disaster which destroyed four of the six units at the

Fukushima Dai-Ichi Nuclear Power Plant in Japan. However, there were almost 100

235 other major accidents (468) between 1952 and 2009, with 57 of these having occurred since the Chernobyl disaster, and over half (56 of 99) taking place in the U.S. (469). Illustrative examples (470) of some of the lesser known, yet significant, accidents include the 30-MWt magnox-type Lucens pilot reactor, located in Vaud, Switzerland, which experienced a loss-of-coolant accident (LOCA) on January 21, 1969, due to accumulation of fuel element corrosion products, resulting in blockage of some of the coolant channels. This led to a partial melting of the fuel, which further led to the fuel igniting. The reactor was decommissioned several months later in 1969.

While not officially confirmed, the still operating RBMK-1000 Unit 1 of the

Leningrad Nuclear Power Plant is suspected of having experienced a partial meltdown in

1975. A confirmed accident there in 1992 resulted in the atmospheric release of radioactive gasses (471).

468 Per Sovacool, a major accident are incidents that either resulted in the loss of human life or more than US$50,000 of property damage. (Sovacool, 2010) 469 Starfelt and Wikdahl used data from the European Union’s ExternE (“External Costs of Energy”) project to determine the health risks, expressed as number of deaths per TWh (terawatt-hour, equal to one-million MWh) associated with electricity production in Europe. Their study found, in part, that there were 0.04 deaths per TWh from nuclear, 60.0 from coal, and 4.0 from natural gas. (Starfelt and Wikdahl, 2011). The World Bank estimated that, in 2011, 22,158.5 TWh of electricity was produced worldwide, with 11.7-percent (2,592.5 TWh) from nuclear (World Bank, 2014). Using Starfelt and Wikdahl’s findings, that would equate to a death rate in 2011 of 103 globally from nuclear energy, but the actual number was zero. The World Health Organization has extensively studied the Chernobyl accident, and found no significant long-term health impacts from the accident. Further, most of the impacts from accidents have been to public confidence and the economic consequences resulting from the recovery, including those from the premature shut-downs of the impacted facilities. (WHO, 2011) 470 This dissertation does not discuss military nuclear accidents, such as Canada’s 1952 partial meltdown of the NRX, the U.K.’s 1957 Windscale fire, the U.S.’s 1959 EBR-1 accident, or the several Soviet Navy’s submarine reactor accidents, e.g., K-8, K-19, K-27, K-140, K-431. 471 Nuclear Energy Institute (1997) “Source Book: Soviet-Designed Nuclear Power Plants in Russia, Ukraine, Lithuania, Armenia, the Czech Republic, the Slovak Republic, Hungary and Bulgaria”; Library of Congress Web Archives, 5th edition, 1997, p. 141.

236 On May 4, 1986, there was a release of radioactive gasses from the experimental

THTR-300, a 300-MWe thorium-fueled high-temperature gas reactor located in Hamm-

Uentrop, Germany. Unlike other reactor designs, which enclose the fuel in metallic rods, the THTR-300 used golf-ball-size ceramic spheres (“pebbles”) to encapsulate the 235U and Thorium-232 (232Th) fuel. Some of the approximately 670,000 pebbles became stuck in a fuel feed tube, which then overheated, resulting in a release. The reactor was permanently shut down and decommissioned in 1988.

It should be noted that there have been more than 14,500 cumulative reactor-years of commercial operation in 32 States in the period 1969 to 2010, and there have been less than 50 deaths globally during that period that are attributable to commercial nuclear operations or accidents. Fatalities from fossil fuel and hydropower sources for the same time period were 2,300-times that of nuclear (472).

2.4.7.1 Lessons-Learned from Operating Experiences

There is a maxim that one learns more from failures than successes, and this has been true for the nuclear industry. The industry – and more importantly, the regulatory authorities – has utilized the lessons learned from the dozens of major accidents, and the thousands of “near-misses”(473), i.e., lower safety-significant incidents, to incrementally improve the technology and the way that nuclear power plants are operated and maintained. A “Defense-in-Depth” (DiD) strategy, which anticipates potential failure

472 Nuclear Energy Agency (2010) "Comparing Nuclear Accident Risks with Those from Other Energy Sources"; http://www.oecd-nea.org/ndd/reports/2010/nea6862-comparing-risks.pdf 473 The term "near miss" comes from aviation, describing two aircrafts approaching each other during flight at a distance less than that usually considered to be safe, but where nothing actually happens. This may be a result of an action preventing a serious event from happening. (IAEA, 2005)

237 modes in order to better prevent and mitigate accidents, has been – mostly – adopted world-wide post-Chernobyl to ensure that there are multiple, diverse, and redundant means to ensure safety. The USNRC defines DiD as:

An approach to designing and operating nuclear facilities that prevents and mitigates accidents that release radiation or hazardous materials. The key is creating multiple independent and redundant layers of defense to compensate for potential human and mechanical failures so that no single layer, no matter how robust, is exclusively relied upon. Defense-in-depth includes the use of access controls, physical barriers, redundant and diverse key safety functions, and emergency response measures.

DiD implies that there needs to be, at a minimum, the highest quality in designing, fabricating, constructing, inspecting and testing the reactor and associated safety-related systems and components. In addition, there needs to be multiple barriers to prevent and mitigate the release of fission products (474); diversity and redundancy in safety equipment to recover from an accident; and, well-tested and trained-on procedures and emergency preparedness, including coordination with local authorities in case of the need to shelter or evacuate in the event of a significant accident.

However, since there have been thousands of minor, and about a hundred major, accidents and near-miss incidents over the past sixty years, and this trend is not decreasing, there is a need for actions akin to what was originally recommended by the

Acheson-Lilienthal Report and the Baruch Plan – there needs to be a global set of

474 Fission products are the fragments and isotopes that result from nucleus fissions, which are typically extremely radioactive but also generally have a short half-life, i.e., time it takes for the material to decay to half of the original material. As such, as long as the fission products can be contained, they pose little hazard to the environment.

238 standards for nuclear safety which all States will adhere to, even if sanctions are required to enforce these standards.

2.5 Global Governance

There is an extensive literature on global governance, defined by Finkelstein (475) as:

…any purposeful activity intended to “control” or influence someone else that either occurs in the arena occupied by nations or, occurring at other levels, projects influence into that arena. . . . Global governance is governing, without sovereign authority, relationships that transcend national frontiers. . . . Global governance is doing internationally what governments do at home.

Variations on this definition of global governance have been proposed by many others since, but there is an essential truism inherent in Finkelstein’s definition, that some recognized international organization makes rules, regulations, or standards that others follow, even including sovereign States. There is also an implicit corollary – that global governance does not necessarily equate to an evolution towards a world government, but rather to some setting of standards that are followed on an international scale.

Koppell (476) characterizes global governance as “not One World Government but a network of multiple global governance organizations.”

There are a variety of non-governmental, governmental and international organizations that develop the standards that are necessary for global governance,

475 Finkelstein (1995) “What Is Global Governance?”; Global Governance, Vol. 1, No. 3, pp. 367-372 476 Koppell (2010) World Rule: Accountability, Legitimacy, and the Design of Global Governance; University of Chicago Press, Chicago, p. 10

239 including several of the United Nations’ fifteen specialized agencies(477), including the three that are considered in this dissertation, i.e., International Civil Aviation

Organization (ICAO), International Maritime Organization (IMO), and International

Telecommunication Union (ITU). In addition, there are various voluntary consensus standards-setting bodies such as the International Organization for Standardization (ISO),

IEEE (formerly the Institute of Electrical and Electronics Engineers) and the American

National Standards Institute (ANSI); and, non-governmental organizations (NGOs) and intergovernmental organizations (IGOs) that set standards or practices that are followed globally, e.g., Internet Corporation for Assigned Names and Numbers (ICANN),

International Whaling Commission (IWC), and International Criminal Police

Organization (Interpol). As demonstrated by these diverse examples, global governance impacts virtually everyone, everywhere.

477 The UN’s specialized agencies are autonomous organizations working with the United Nations and each other through the coordinating machinery of the United Nations Economic and Social Council at the intergovernmental level, and through the Chief Executives Board for coordination (CEB) at the inter-secretariat level. Specialized agencies may or may not have been originally created by the United Nations, but they are incorporated into the United Nations System by the United Nations Economic and Social Council acting under Articles 57 and 63 of the United Nations Charter. At present the UN has in total 15 specialized agencies that carry out various functions. Specialized agencies include: Food and Agriculture Organization (FAO); INTERNATIONAL CIVIL AVIATION ORGANIZATION (ICAO); International Fund for Agricultural Development (IFAD); International Labour Organization (ILO); INTERNATIONAL MARITIME ORGANIZATION (IMO); International Monetary Fund (IMF); INTERNATIONAL TELECOMMUNICATION UNION (ITU); United Nations Educational, Scientific and Cultural Organization (UNESCO); United Nations Industrial Development Organization (UNIDO); Universal Postal Union (UPU); World Bank Group, i.e., International Bank for Reconstruction and Development (IBRD), International Finance Corporation (IFC), and International Development Association (IDA); World Health Organization (WHO); World Intellectual Property Organization (WIPO); World Meteorological Organization (WMO); and, World Tourism Organization (UNWTO). Wikipedia, (2015), “List of specialized agencies of the United Nations,” http://en.wikipedia.org/wiki/List_of_specialized_agencies_of_the_United_Nations

240 Why have such organizations been empowered to exert influence over so many aspects of our civilization? The short answer is that, without such organizations developing and maintaining internationally-accepted rules and regulations, our civilization would be – at best – Hobbesian in nature, since there would be no customary means to standardize interactions. Imagine a world where, each time one traveled beyond the local jurisdiction, one would have to wonder if the safety standards in the local building codes were sufficient, if the food and water were safe to consume, if the fuel would damage your vehicle’s engine, if you would need to obtain new licensing for the new jurisdiction, if you would be able to communicate with your home – the list goes on. However, with global governance, a ship that is registered in accordance with the specifications of the International Maritime Organization does not need to obtain new registrations in each port that adheres to IMO standards, nor does an airline whose aircraft are registered in accordance with the specifications of the International Civil

Aviation Organization need to obtain special permissions in order to fly over a State that adheres to ICAO standards, nor do you have to use only the postage of the recipient’s

State in order to send mail to someone in a State that abides by the Universal Postal

Union standards. By having such globally agreed-to standardization for various activities, commerce is facilitated, interactions are made easier, and there are fewer causes for strife.

But such consensus does not come easily or universally, as is demonstrated by the refusal by four States to accede to the Nuclear Non-Proliferation Treaty, that now have or are suspected of having, nuclear weapons. Another example is the U.S. refusal, along with thirty other States, to ratify the United Nations Convention on the Law of the Sea

241 (UNCLOS), which defines the rights and responsibilities of States with respect to their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. However, 163 UN member States have ratified

UNCLOS, which entered into force on November 6, 1994. These examples raise the question, what is necessary for global governance to be accepted?

2.5.1 Accountability and Legitimacy

Koppell asserts that global governance organizations need to exhibit both legitimacy and accountability, and both the NPT and UNCLOS treaties meet these requirements.

India, Israel, and Pakistan are members of the IAEA, but non-signatories of the NPT.

The simplest answer to why these three States belong to one while ignoring the other is that there are perceived benefits to membership in the IAEA, but not to committing to follow the NPT, nor are there any significant consequences to not acceding to the NPT.

Why do States willingly surrender portions of their sovereignty in order to actively participate in global governance organizations? Brown, in his discussion of

“Westphalian principles,” captures this conundrum:

…even to this day two principles of interstate relations codified in 1648 constitute the normative core of international law: (1) the government of each country is unequivocally sovereign within its territorial jurisdiction, and (2) countries shall not interfere in each other's domestic affairs. (Brown, 1992, pp. 74)

242 So why do States willingly accede to the dictates of some global governance organization instead of creating their own standards and requirements? Checkel (478) posits that States do so because “Rationalists emphasize coercion, cost/benefit calculations, and material incentives, whereas constructivists emphasize social learning, socialization, and social norms.”

Osiander (479) suggests that “Growing interdependence as a result of industrialization has, for a century or more, continuously undermined the capacity for self-reliance of international actors (states) and will diminish it further.”

Kissinger (480) opined that a robust international order “…achieves its transformations through acceptance, and this presupposes a consensus on the nature of a just arrangement.”

As such, if an international government organization (IGO, also global governance organization) is to be successful, there is a need for it not only to be fair in its dealings, but also to be perceived as both ensuring just and equal treatment between and by all parties. In addition, the participating State needs to perceive that the benefits accrued from participation outweigh the consequences of non-participation. Specifically, the IGO must provide a service to the participating State that the State wants, and which would otherwise be arduous for that State to acquire if it was to do so in a unilateral fashion.

478 Checkel (2001) “Why Comply? Social Learning and European Identity Change”; International Organization, Vol. 55, No. 3, pp. 553-588 479 Osiander (2001) “Sovereignty, International Relations, and the Westphalian Myth”; International Organization, Vol. 55, No. 2, pp. 251-287 480 Kissinger (1957) A World Restored: Metternich, Castlereagh and the Problems of Peace, 1812-22; Boston: Houghton Mifflin, pp. 172–3.

243 But does this mean that participation in an IGO undermines sovereignty? Koppel (481) observes:

…contemporary “global governance” appears to be many disconnected activities; it is not typically experienced as a single phenomenon by one individual or institution. Taken together, however, the activities of global governance organizations [GGOs] can be seen as the early signs of a gradual shift in governance anticipated by functionalists but dismissed by realists and other skeptics. . . . Some critics have been searching for a global state and thus have overlooked the reality that even the current set of GGOs meets two criteria to warrant serious consideration. First, the activities of the GGOs have notable economic implications for states and market participants. Second, the activities of GGOs increasingly appear to impinge on the autonomy of national governments.

While various IGOs were originally established to improve market viabilities by ensuring that every State could trade with their neighbors more easily and more fairly, the unintended consequence may be a gradual, albeit willing, erosion of traditional national sovereignty and national rights in various areas. The implication is that while we may not be close to a unified world government, it appears that we are successfully establishing a global bureaucracy; or, at least, a series of transnational bureaucracies.

But even in a relatively homogeneous polity such as the U.S., there are divergent interests and needs, so can there be any true expectation that IGOs will be able to meet the conflicting needs and expectations of both Developed and Developing States?

According to Bearce and Bondanella (482), the answer is yes, based on their exploration of

481 Koppell (2010) p. 8ff 482 Bearce and Bondanella (2007) “Intergovernmental Organizations, Socialization, and Member-State Interest Convergence”; International Organization, Vol. 61, No. 4, pp. 703-733

244 the constructivists' institutional socialization hypothesis that IGOs make member states’ interests more similar over time, thus promoting interest convergence. This is further borne out by the research of Reiser and Kelly (483), who reviewed the role international

NGOs, e.g., Amnesty International, Transparency International, and Greenpeace

International, have in global governance. Reiser and Kelly found that, through the setting of standards, establishing best practices, and advocating for certain actions, NGOs can create “soft law” that national governments or private actors may follow. It is also the opinion of Fang and Stone (484), who modeled the possibility of national governments deferring policy decisions to an external expert organization, that deferring governmental actions by accepting such “soft law” can be attractive.

However, as exemplified by the research of Barnett and King (485), industries that

“self-regulate” – usually by the creation of voluntary self-regulation programs that create a set of “best practices” which individual firms pledge adherence to – do not necessarily ensure that all members of that industry will conform to these voluntary programs. The firms who publicly subscribe to “best practices,” even if they do not actually institute them, benefit from an improved stakeholder perception of the firm, receiving a free-rider benefit conferred by the program’s existence. Since there may be no enforceable requirement for all firms in the industry to adhere to the self-regulation program, or

483 Reiser and Kelly (2011) “Linking NGO Accountability and the Legitimacy of Global Governance”; Brooklyn Journal of International Law, Vol. 36, pp. 1011-1073 484 Fang and Stone (2012) “International Organizations as Policy Advisors”; International Organization, Vol. 66, Issue 04, pp. 537-569 485 Barnett and King (2008) “Good fences make good neighbors: A longitudinal analysis of an industry self-regulatory institution”; Academy of Management Journal, 51(6), 1150-1170

245 consequences for those who do not, self-regulation cannot ensure the safety and security of the public and environment.

Carrigan and Coglianese (486) considered how regulatory regimes break down, and concluded that policy-makers need to carefully consider possible unintended consequences. This need to make haste slowly is especially important when the policy- maker is attempting to demonstrate to their constituents that the policy-maker is responding in a timely manner to some perceived failure of the regulators. As discussed above, sometimes the best answer is to pause and carefully consider the outcomes, both desired and not, before authorizing new authorities. Carrigan and Coglianese (487) also considered the structure that could be utilized in creating or modifying a regulatory authority, and suggest that a careful review of the literature on regulatory design would be fruitful in helping to design a regulatory regimes.

2.5.2 Nuclear Governance

As is demonstrated with the challenges to nuclear non-proliferation from by the nuclear programs of States such as Pakistan, North Korea, and Iran, as well as challenges being faced by States with nascent nuclear energy programs, nuclear governance needs to encompass safety and security for not just the population of the immediate environs around nuclear power plants, but also for the transnational region as a whole. As accidents such as Chernobyl and Fukushima Dai-ichi demonstrate, the repercussions

486 Carrigan and Coglianese (2012) "Oversight in hindsight: Assessing the US regulatory system in the wake of calamity"; 12-38. 487 Carrigan and Coglianese (2011) "The politics of regulation: From new institutionalism to new governance”; Annual Review of Political Science, 14.

246 from an accident can have global impacts. Echoing INPO’s Board Chair Walter J.

McCarthy, Jr., who opined following the TMI-2 accident that “each licensee is a hostage to every other licensee,” then U.S. Department of Energy Secretary John Herrington clearly articulated (488) the impact the Chernobyl accident had:

Chernobyl has made it abundantly clear that nuclear safety is not, and cannot be, a solely national concern.

As such, the need for strong nuclear governance, as exhibited by a strong regulator, is crucial. This is borne out by the literature on nuclear regulation (489):

In most countries possessing a domestic nuclear industry, it seems advisable to have an independent regulator. This ensures both the public and environmental groups that nuclear project regulatory decisions are not biased by inappropriate factors.

Alger and Findlay (490) describe the hurtles that Developing States will have to overcome in order to develop commercial nuclear energy sources, including funding challenges, physical infrastructure limitations, and governance:

A country’s ability to run a nuclear power program safely and securely depends on its capacity to successfully and sustainably plan, build (or at least oversee construction of), and manage a large and complex facility and its associated activities. For a nuclear reactor, such a commitment stretches over decades, at least 60 years from initial planning to decommissioning. For high-level, long-lasting nuclear waste, some of which can remain radioactive for millennia, the commitment is essentially

488 Herrington, J.; 1986; The Energy Report, 9 September 1986, p. 722 489 Bredimas and Nuttall (2008) “An International Comparison of Regulatory Organizations and Licensing Procedures for New Nuclear Power Plants”; Energy Policy, Vol 36, pp. 1344-1355 490 Alger and Findlay (2010) “Strengthening Global Nuclear Governance”; Issues in Science and Technology, Fall 2010, pp. 1-10

247 forever. Although the existing nuclear energy states have learned through experience and trial and error, this is not possible or permissible in the current era. Norms, expectations, and standards have evolved. The IAEA estimates that it can take at least 10 years for a state with no nuclear experience to prepare itself for hosting its first nuclear power plant. Many aspiring nuclear energy states have struggled with managing large investment or infrastructure projects for a wide range of reasons, including political violence, mismanagement, and corruption.

Rees (491) offers a countervailing theory, that “communitarian regulation,” characterized by a well-defined industrial morality that is backed by enough communal pressure to institutionalize responsibility among its members, can result in an industrial association that is an effective regulator. However, the evidence to support this theory is lacking.

Alger and Findlay reviewed the findings of the Survey of Emerging Nuclear Energy

States (SENES) (492), and concluded that:

Currently, all of the developing countries seeking nuclear energy lack the requisite national laws and regulations, agencies and practices, trained and experienced personnel, and appropriate safety culture to safely host a nuclear plant. None has the capacity to manage nuclear waste, except that currently resulting from medical or research applications. Some with relatively advanced nuclear energy plans, such as Indonesia, the UAE, and Vietnam, are beginning to put in place the necessary prerequisites. Others, such as Algeria and Egypt, have been operating research reactors

491 Rees (1996) Hostages of Each Other: The Transformation of Nuclear Safety Since Three Mile Island; Chicago, IL: The University of Chicago Press, 1996:235. 492 The SENES was compiled by the Nuclear Energy Futures Project, which is a joint undertaking of the Centre for International Governance Innovation (CIGI) in Waterloo, Canada, and the Canadian Centre for Treaty Compliance (CCTC) at Carleton University.

248 and using radioactive sources for peaceful purposes for some time, so they have some institutional elements in place and some experience to draw on. Few developing states will be able to afford the UAE approach of buying everything required from abroad. Even an advanced nuclear state such as the United Kingdom is having difficulty finding enough qualified regulatory staff to prepare for its national nuclear revival. (pg. 5)

One of the implications of the SENES findings is the urgent need for an institution that can provide assistance to the Developing States that need necessary legal and regulatory infrastructure to ensure that their nuclear energy programs meet the highest standards for safety and security, but that will refrain from being used to proliferate nuclear weapons.

But why is it necessary to develop a new intergovernmental agency to address these needs when organizations like the IAEA, NEA, and regional and thematic cooperative nuclear regulatory networks, e.g., WENRA and the WWER Cooperation Forum, already exist? Colgan, et al., in a Global Governance 2020 report, provides one perspective (493):

An emerging trend in international politics today is the growth of small coalitions of powerful states to address global problems. Examples of this phenomenon include the G-20, the Six Party Talks in Northeast Asia and the Group of Six negotiations with Iran. . . . States left out of a system characterized by burgeoning forms of exclusive mini-lateralism could seek nuclear weapons. Weak states, for instance, could come to see the acquisition of nuclear weapons as one of few available means of influence in a world in which they otherwise are afforded no formal voice.

493 Colgan, et al. (2011) “Beyond the Numbers - Strategies for Global Nuclear Governance”; Global Governance 2020, p. 13

249 The composition of the various transnational regulatory associations touches upon nuclear power needs. While the IAEA is open to all who desire to join (494), NEA has only 30 members, and regional organizations like WENRA typically do not include extra-regional States. Again, IAEA and NEA do not produce regulations per se, but rather recommendations that their members may – or may not – implement. Developing

States, such as Bangladesh, Indonesia, Malaysia, and Viet Nam, that are presently seeking assistance from the IAEA and regulatory bodies in States with more established nuclear power programs will need to make decisions on what form of regulatory system they wish to emulate. Guidance is needed because each State has a unique regulatory system, as described by Bredimas and Nuttall (495):

The seven countries that we decided to analyze are each unique. On the cultural side, we have three laissez-faire countries, all sharing a long- standing belief in the benefits of competitive markets (Canada, the UK and USA) and we have four countries with traditionally a more dirigiste approach (France, Germany, Japan and Switzerland).

For instance, in order for a nuclear vendor to do business in any of the various States that either have an existing nuclear power program, or that wish to develop one, the vendor must customize his product or service to conform to the regulatory requirements of each individual State. Customization increases the cost of nuclear energy

494 The DPRK was an IAEA Member State from 1974 to 1994, but withdrew after the Board of Governors found it in non-compliance with its safeguards agreement and suspended most technical co-operation. IAEA (1994) “The Withdrawal of the Democratic People's Republic of Korea from the International Atomic Energy Agency” (INFCIRC/447); https://www.iaea.org/publications/documents/infcircs/withdrawal- democratic-peoples-republic-korea-international-atomic-energy-agency 495 Bredimas and Nuttall (2008) pp. 1345

250 unnecessarily, and may adversely impact nuclear safety and security due to potential regulatory conflicts.

In addition to simply not having a common set of regulatory standards, to paraphrase

Donne, each State becomes “an island, entire of itself,” at least as far as nuclear energy oversight is concerned. As Baker and Stoker (496) observe:

An expanded role for nuclear power cannot be called into existence by government fiat and considerable challenges stem from the nature of nuclear technology itself, the institutional and physical configuration of the energy industries within each country, and the political systems within which each government is embedded.

If Baker and Stoker are correct that the starting conditions will invariably, and adversely, influence the proposed changes, how then do we explain examples such as the

Republic of (South) Korea and the Peoples’ Republic of China, both of which have, in the past fifty years, managed to become economical titans, and both of which are continuing to grow their nuclear markets internally and for export? I contend, contrary to

Baker and Stoker, that having support at the highest levels of government is a necessary, but not sufficient, precondition for the successful integration of a technology like nuclear energy into a national economy, and that this support is even more important when the

496 Baker and Stoker (2012) “Metagovernance and Nuclear Power in Europe”; Journal of European Public Policy, pp. 1-26

251 technology in question is as fraught with negative public perception, as nuclear energy is (497). Ash (498) offers:

Regulatory organizations responsible for implementing safety in the civil energy sector must address a triad of factors: the risk tolerance of the community, the methodology used to measure and enforce risk levels, and the resources available to the regulatory agency. Attempts to balance these factors have often focused on attempting to align public perceptions of risk with those of government personnel, technical specialists, and industry. This “information deficit” approach has largely been unsuccessful because the shortfall, particularly in respect to dread risk, has not been one of knowledge but of trust. Given the difficulty of countering distrust, reinforcing public trust in a just regulatory process is proposed in lieu of confidence in regulatory organizations.

2.6 Other Governance Models

Beyond establishing an indigenous regulatory authority, how do States approach the governance of industries with transnational connections, such as international aviation, maritime shipping, and global communications? One successful method has been to utilize an international organization that codifies standards and best-practices that can be accepted by subscribing States in lieu of each State developing an indigenous set of standards and practices. Examples of such transnational governance organizations include the three specialized United Nations agencies studied here: the International Civil

497 “Our results suggest that dread about nuclear power leads respondents to choose 40% less nuclear generation in 2050 than they would have chosen in the absence of this dread.” Abdulla, Vaishnav, Sergi, Victor (2019) “Limits to deployment of nuclear power for decarbonization: Insights from public opinion”; Energy Policy; Vol. 129, June 2019, p. 1339-1346 498 Ash (2010) “New Nuclear Energy, Risk, and Justice: Regulatory Strategies for an Era of Limited Trust”; Politics & Policy, Vol. 38, No. 2, pp. 255-284

252 Aviation Organization (ICAO), the International Maritime Organization (IMO), and the

International Telecommunication Union (ITU).

2.6.1 International Civil Aviation Organization

The ICAO is the successor to the International Commission for Air Navigation

(ICAN), which was established by the 1919 Paris Convention on the Regulation of Aerial

Navigation to oversee the agreements of the Paris Convention. Twenty-five years later, in the closing days of World War II, the Paris Convention was superseded by the 1944

Chicago Convention on International Civil Aviation, mainly because of a U.S. push for unfettered access to international markets that the burgeoning civil aviation sector offered in the post-war period. The U.S. did not want an ICAN-like organization strong enough to have economic oversight of the international aviation market. The U.S. approach was in direct contrast to the U.K.’s ultimately unsuccessful proposal for a strong international authority that would act as a nonpartisan arbiter for the establishment of fares and routes (499), (500).

ICAO has 193 member [Contracting] States, and the Cook Islands (501). The ICAO

Assembly meets triennially, and its Council consists of 36 members elected from 3

499 It should be noted that during the Chicago Convention negotiations, representatives from Australia and New Zealand proposed a scheme that would have provided for international ownership and operation of all international air services; however, this was rejected early in the discussions. Similar proposals for the international ownership and operation of NPPs have also been rejected. Sassella (1971) "The International Civil Aviation Organization: Its Contribution to International Law"; Melbourne University Law Review, Vol. 8, 41-90 500 Nayer (1995) "Regimes, Power, and International Aviation"; International Organization, Vol. 49, No. 1, pp. 139- 170 501 ICAO’s members include 192 of the 193 UN members, with Liechtenstein, which lacks an international airport, delegating Switzerland to enter into the treaty on its behalf.

253 groups (Group I, chief importance; Group II, large contributions; and, Group III, geographic representation). The ICAO Secretariat is composed of the Air Navigation

Bureau, the Air Transport Bureau, the Technical Co-operation Bureau, the Legal Affairs and External Relations Bureau, the Bureau of Administration and Services, and seven

Regional Offices; and is led by a Secretary General. In as ICAO standardizes certain airline industry functions, it is a standards developing organization.

ICAO develops technical specifications – Standards And Recommended Practices

(SARPs (502)) – that are intended to achieve “the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation” (ICAO, 2019). Since SARPs are published as Annexes to the

Chicago Convention, SARPs do not have the same legal binding force as the Convention itself. As such, each Contracting State may not adopt the SARP as written into its own regulations and practices.

ICAO verifies Contracting States’ compliance with SARPs through two audit programs – the Universal Safety Oversight Audit Programme (USOAP), and the

The Republic of China, which was a founding ICAO member but was replaced by People's Republic of China as the legal representative of China in 1971, attends the ICAO Assembly as a guest under the name of Chinese Taipei. ICAO (2019) “Member States”; https://www.icao.int/about-icao/Pages/member-states.aspx

502 ICAO, in Annex 9, defines STANDARDS as “any specification, the uniform observance of which has been recognized as practicable and as necessary to facilitate and improve some aspect of international air navigation, which has been adopted by the Council pursuant to Article 54(1) of the Convention, and in respect of which non-compliance must be notified by States to the Council in accordance with Article 38.”

ICAO defines RECOMMENDED PRACTICE as “any specification, the observance of which has been recognized as generally practicable and as highly desirable to facilitate and improve "some aspect of international air navigation, which has been adopted by the Council pursuant to Article 54(1) of the Convention, and to which Contracting States will endeavor to conform in accordance with the Convention.” Note that there is no requirement to notify ICAO of local deviations to “recommended practices.”

254 Universal Security Audit Programme (USAP). The USOAP audits eight critical elements that are considered to be necessary to the effective implementation of safety-related standards. These critical elements include: primary aviation legislation and specific operating regulations; civil aviation organization; personnel licensing and training; aircraft operations; airworthiness of aircraft; aircraft accident and incident investigation; air navigation services; and, aerodromes [airports] and ground aids. The USAP analyzes data on Member States’ aviation security performance; identifies deficiencies in the overall aviation security performance of Member States and assesses the risks associated with such deficiencies; provides prioritized recommendations to assist Member States in addressing identified deficiencies; evaluates and validates corrective actions taken by

Member States; and, assesses the overall level of Member States’ aviation security performance (ICAO, 2019).

Milde (503), who otherwise criticizes the effectiveness of ICAO, states:

The last 50 years also witnessed a vast progression in the unification and codification of international air law. The future perspectives of air law will require an intensive and effective progression made in this field. It has to respond to, and even anticipate the evolution of technical, operational and economic realities. The early pioneers and some of their successors in ICAO's Legal Committee ought to be saluted for their wisdom, leadership and professionalism in the evolution of international air law. Nevertheless, the future has to learn not only from the successes but also from the failed attempts at codification and unification in the past.

503 Milde (1996) "The International Civil Aviation Organisation: After 50 Years And Beyond"; Australian International Law Journal, Vol. 60, 1996

255 One fundamental lesson which can be learnt is that the unification and codification of air law has no place for academic speculation or perfection in the sense that "the best may be the enemy of the good". Academic perfection is of little relevance if it is not in harmony with the political will of states and if it does not respond to a sense of priority and the necessity for international action. Be that as it may, it is quite spectacular that the unification of international air law has been exceptionally successful in the public law sector dealing with aviation security. The 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft has been ratified by 157 states. The 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft has been ratified by 158 states. And the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation has been ratified by 159 states. No other unification of law in other fields has come close to such international acceptance.

Erler (504) described ICAO as an “excellent example of improved techniques based on optional acceptance by States,” and as a model for the then forming Intergovernmental

Maritime Consultative Organization (IMCO, the precursor to the IMO) to emulate. Erler further asserts that ICAO was successful mainly due to a shift in philosophy away from the Paris Convention’s ICAN model of international legislation to a consent principle that achieved near-universal adherence, but which provides ICAO with only quasi-legislative capabilities, as demonstrated by the ICAO’s implementing language which gives each member State certain latitude in implementing the ICAO standards (505).

504 Erler (1964) “Regulatory Procedures of ICAO as a Model for IMCO”; McGill Law Journal, 10, 262. 505 Examples of the discretion that ICAO members have include language in Article 12 to implement the ICAO standards “to the greatest possible extent”; in Article 26 “so far as its laws permit”; or, in other Articles, as the States “may find it practicable.” However, each member State is required to notify ICAO of any differences that exist between its national regulations and the ICAO international standards.

256 2.6.2 International Maritime Organization

The IMO developed somewhat organically as various States undertook, as early as the 19th Century, to harmonize their indigenous regulations with other maritime States through bilateral, and then multilateral, treaties and agreements in order to encourage free trade and to minimize seafaring risks (506). The UN convened a conference in 1948 that sought to internationalize these various regional maritime laws and agreements, which resulted in the adoption of the Convention on the Inter-Governmental Maritime

Consultative Organization (IMCO), with 31 initial member States. IMCO changed its name to the International Maritime Organization (IMO) (507) in May 1982.

The IMO has more than 170 members and is headed by a secretary-general, who serves a four-year term and oversees a Secretariat staff of approximately 300. The IMO’s primary policy-making body is the Assembly, which meets biannually, and is composed of all of the members. The 40-member Council, with region-allocated representation, meets twice a year and governs the IMO between Assembly sessions. In addition, the

IMO has five policy-making Committees (508), which report to the Council and Assembly,

506 The first supranational maritime law association, the Comité Maritime International (CMI), was formed in Belgium in 1896 to address maritime law and ship-owners’ liability, especially in areas like collisions and salvage. 507 The proposal to change the name of the IMCO to IMO was initially opposed by the Japanese delegation due to a concern arising from the phonetic “i-mou” is a Japanese term for “hot potato”; as such, the organization is referred to informally as “I” “M” “O”. 508 The IMO’s committees include the Maritime Safety Committee, the highest technical body of the IMO, which considers “any matter within the scope of the Organization concerned with aids to navigation, construction and equipment of vessels, manning from a safety standpoint, rules for the prevention of collisions, handling of dangerous cargoes, maritime safety procedures and requirements, hydrographic information, log-books and navigational records, marine casualty investigations, salvage and rescue and any other matters directly affecting maritime safety”; the Facilitation Committee, which is focused on eliminating unnecessary formalities and "red tape" in international maritime shipping; the Legal Committee, which is empowered to deal with any legal matters within the scope of the IMO; the Marine Environment Protection Committee, which is focused on the adoption and

257 and are responsible for the development, review, updating, and approval of the organization’s guidelines and regulations. There are seven sub-Committees, focusing on

Human Element, Training and Watchkeeping (HTW); Implementation of IMO

Instruments (III); Navigation, Communications and Search and Rescue (NCSR);

Pollution Prevention and Response (PPR); Ship Design and Construction (SDC); Ship

Systems and Equipment (SSE); and, Carriage of Cargoes and Containers (CCC). In addition, IMO has signed agreements of cooperation with 64 intergovernmental organizations (509).

Similar to the ICAO, the IMO’s primary purpose is to develop and maintain a comprehensive regulatory framework for maritime shipping, and this framework includes safety, environmental concerns, legal matters, technical cooperation, maritime security, and the efficiency of shipping. IMO has encouraged the adoption by its member States of more than 40 conventions and protocols, and has adopted over 700 maritime safety and environmental protection codes and recommendations. IMO has also developed the mandatory International Safety Management (ISM) Code, which established minimum standards for safety management and operation of ships and for pollution prevention.

However, the ISM Code does not create specific operating rules and regulations, but instead provides a broad framework for vessel owners and operators in order to ensure

amendment of conventions, other standards and measures to ensure their enforcement in the areas of prevention and control of pollution from ships; and, the Technical Co-operation Committee, which considers any matter within the scope of the IMO concerned with the implementation of technical cooperation projects. IMO (2019) “Structure of IMO”; http://www.imo.org/en/About/Pages/Structure.aspx 509 IMO (2019) “Intergovernmental Organizations which have concluded agreements of cooperation with IMO”; http://www.imo.org/en/About/Membership/Pages/IGOsWithObserverStatus.aspx

258 compliance with existing regulations and codes, to improve safety practices and to establish safeguards against all identifiable risks (510).

The IMO requires its member States to audit and certify the implementation of the

IMO regulations and codes, but allows the delegation of these activities to “recognized organizations” (RO), entities that have been certified by the member State as meeting the guidelines set forth in SOLAS Chapter I, regulation 6(a), and are authorized to provide statutory service and certification. In short, an RO is an organization that the State has determined has sufficient technical capability to verify shippers’ compliance with IMO codes and standards.

The IMO has adopted a procedure of “tacit acceptance,” in which any decision that is approved by the majority of the IMO members will be binding on all members, even those States that did not support the decision, unless they explicitly (511) reject the decision within the specified time period. This procedure has been successful and could translate well to other intergovernmental organizations.

2.6.3 International Telecommunication Union

The International Telecommunication Union (ITU, originally the International

Telegraph Union) is the oldest intergovernmental organization, having been formed in

1865 with the signing of the International Telegraph Convention by its twenty founding members. Other technologies were added, including telephone (1885), “wireless

510 Tarelko (2012) "2012 International Symposium on Safety Science and Technology Origins of ship safety requirements formulated by International Maritime Organization"; Procedia Engineering 45, p. 847-856 511 Any member State that does not explicitly notify IMO of their intention to reject the decision is considered to have accepted it.

259 telegraphy” or radio (1906), television (1949), space communications (1963), mobile connectivity (1993), and the internet (2003). ITU membership includes 192 UN member

States and Vatican City, and private organizations, i.e., international and regional telecommunication organizations, carriers, equipment manufacturers, and research and development organizations (ITU, 2019).

ITU's main decision-making body is the Plenipotentiary Conference, which is composed of all 193 ITU Members and meets every four years. The ITU Council, which meets annually, is the governing body between Plenipotentiary Conferences. The

Council has 48 members (9 from the Americas; 8 from Western Europe; 5 from Eastern

Europe and Northern Asia; 13 from Africa; and, 13 from Asia and Australasia). In addition to the Member States, ITU has some 900 non-voting sector members, representing private companies, universities, and international and regional organizations

(ITU, 2019). Like ICAO and IMO, ITU is a standards developing organization.

ITU’s harmonization of communications standards internationally ensures compatibility and interoperability, making it easier to communicate worldwide, and blurring borders. However, ITU’s normalization of technical and administrative standards has challenged comprehensive control of communications demanded by some member States. This leads to a Catch-22 situation – adopt ITU’s standards so as to better engage and compete in the global marketplace, or develop indigenous and non- compatible standards which isolate and puts the non-conforming State at a serious disadvantage.

260 2.6.4 Comparison of Governance Models

There are three similarities, and corresponding challenges, shared by ICAO, IMO, and ITU. The first is that all three develop standards and practices, but they don’t directly regulate, respectively, international aviation, maritime shipping, or telecommunications, leaving the confirmation of adherence to these standards and practices to their respective member States. Second, there is a challenge shared by all of these organizations, which is similar to regulatory capture, in that each organization relies heavily on active participation by its respective membership to develop its standards and practices. As such, the more developed States have an advantage in that they can afford to send large contingents to participate in the standards development (512). Third, all three tend to focus on their respective sectors by regions, as demonstrated by how they allocated positions on their governing councils, and the emphasis they have on regional offices to concentrate their efforts.

2.7 Next Step

In Chapter 4, I will expand on the similarities across, and the challenges facing the

ICAO, IMO, and ITU. I will also consider how the IAEA, NEA, and other nuclear organizations support the development and advancement of oversight and governance over the generation of nuclear energy.

512 Hayer, et al. (2016) “Decision-making processes of ICAO and IMO in respect of environmental regulations”; European Parliament's Committee on Environment, Public Health and Food Safety; IP/A/ENVI/2016-13, PE 595.332; http://www.europarl.europa.eu/RegData/etudes/STUD/2016/595332/IPOL_STU(2016)595332_EN.pdf

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3 Chapter 3: Research Model and Methodology

This chapter provides the research questions and the design of the research that was undertaken, including a discussion of the strengths and potential limitations of the methodological approach taken. The data sources, limitations and strengths, methods, objectives and analysis techniques discussed in this chapter are summarized in Table 3-1,

“Overview of Methodology.” The interview questions are included in Table 3-2, Table

3-3, and Table 3-4, and the interviewees are summarized in Table 3-5.

3.1 Research Questions

The policy problem I investigated is how existing national-level nuclear regulatory authorities (NNRAs), and NRRAs in States that are adding nuclear energy, might be developed in order to ensure the safe and secure use of commercial nuclear energy on a global basis. I began with two research questions:

3) What are the lessons learned from intergovernmental organizations that create

globally-utilized standards and regulations which could be applied to assist in

developing an international nuclear regulatory agency that could provide

reasonable assurance of the safe and secure operation of commercial nuclear

power globally?

4) What are the options to empower an international nuclear regulatory agency, e.g.,

international treaties, in order to ensure that it has the necessary resources and

authority to facilitate safe and secure nuclear power usage?

The first research question is largely descriptive, while the second question is more prescriptive since policy alternatives that would support the development of an

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international nuclear regulatory agency are compared. These research questions are based on my underlying premise that global adherence to a common set of nuclear regulatory standards, vice having multiple disparate, and often conflicting, national regimes of indigenously-developed, or adapted from the supplying nuclear vendor’s nuclear regulations and standards, would improve nuclear safety, security, and safeguards globally.

3.2 Overview of the Research

As discussed in Chapter 2 of this dissertation, I am not asserting that commercial nuclear energy generation is presently unsafe or unsecure per se. Rather, I acknowledge that there is a significant variations in the technical capabilities and jurisdictional powers that existing NNRAs possess, especially in those States that have poorly-staffed or resourced NNRAs. In addition, those States that are preparing to add nuclear to their energy portfolio could have substantial challenges in developing the legal framework necessary to authorize their NNRA to provide adequate oversight of new nuclear energy facilities, and also in developing indigenous technical expertise to perform this oversight.

This spectrum of capabilities and authorities calls into question the continuing ability of some NNRAs to provide adequate oversight.

The needed support that could assist some NNRAs is not being provided by existing nuclear-related intergovernmental organizations (IGOs) such as the International Atomic

Energy Agency (IAEA) and the OECD’s Nuclear Energy Agency (NEA), since they do not have the legal authority to impose requirements on, or to sanction, their member

States. Nor are the various regional cooperative regulatory networks and nuclear trade associations equipped to do so, since they are primarily focused on information

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exchanges, as opposed to developing and enforcing common standards and regulations among their members.

As such, I propose that there is a need for a new autonomous, competent, and authorized international nuclear oversight organization that will be able to provide a consistent regulatory framework that includes well-researched and validated technology- neutral and technology-appropriate standards and regulations, which could be utilized globally. This regulatory framework would assist each NNRA in ensuring that the commercial nuclear industries overseen in their respective State are taking reasonable and prudent actions to prevent or mitigate the effects of natural or man-made accidents, and to prevent or mitigate nuclear weapons proliferation.

Further, the proposed international nuclear oversight organization should have the legal authority to conduct critical reviews of the ability of each member State’s NNRA to provide effective and adequate safety and security oversight of their respective commercial nuclear industries. Ideally, the proposed international nuclear oversight organization would also possess some means, perhaps similar to ICAO’s Red Flag rating or IMO’s Member State Audit Scheme, to encourage the reviewed NNRA to take whatever corrective actions are needed so as to be able to provide adequate and effective oversight. This review capability, and the means to encourage corrective action, would be a significant expansion of the powers the IAEA possesses, since IAEA’s Integrated

Regulatory Review Service (IRRS) and International Physical Protection Advisory

Service (IPPAS) missions are only made public if the NNRA agrees, so they do not even have the authority of embarrassing the reviewed NNRA. The proposed review authority

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would be more akin to the self-assessment reviews performed by the U.S. NGO, the

Institute of Nuclear Power Operations (INPO).

As discussed in Chapters 1 and 2, there is every expectation that over the next several decades a number of States, especially Developing States, will be adding nuclear to their energy portfolio. Since Developing States do not have the resources available to

Developed States, there exists a concern as to how well Developing States will be able to design, build, operate, maintain, decommission, and – most importantly – appropriately oversee these nuclear energy facilities to ensure that they remain safe and secure.

As such, I investigated what has, and has not, worked for three specialized United

Nations (UN) agencies – the International Civil Aviation Organization (ICAO), the

International Maritime Organization (IMO) and the International Telecommunications

Union (ITU). As discussed in greater detail in Chapter 2, these agencies promote the safe and secure development and operation of international civil aviation and maritime shipping (ICAO and IMO, respectively), and organize and standardize telecommunications globally (ITU).

These organizations do not directly regulate aviation, maritime shipping, or telecommunications per se, but rather develop regulations and standards that member

States implement in lieu of developing their own – potentially insufficient and/or overly burdensome – indigenous regulations and standards, which ensures that there is a common starting point for international civil aviation, maritime shipping, and for global communications. The standards and criteria that ICAO and IMO develop ensure that minimal levels of safety and security are required for international civil aviation and maritime shipping, while the standards developed by the ITU ensure that communications

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networks and technologies interconnect globally. These criteria provide a basis for consistency that can be utilized by civilian designers/vendors, operators and regulators, so that the world can more efficiently and effectively conduct international civil aviation, maritime shipping, and telecommunications.

I also examined existing nuclear-related organizations, including IAEA and NEA, and the various regional cooperative nuclear regulatory networks such as WENRA,

ENSREG, FNRBA, ANNuR, ANSN, and FORO, as well as a number of NNRAs.

Based on these studies, I assessed how the lessons learned from these organizations could inform the development of a new international nuclear regulatory organization empowered to develop regulatory frameworks that NNRAs could utilize in overseeing the safe and secure use of nuclear energy in their State.

3.3 Methodology Selected

Since this is exploratory research, intended to provide insights, I utilized a case study approach, with the unit of analysis being the cases of the ICAO, IMO, and ITU.

Case studies are multi-perspectival analyses, which means that the researcher needs to consider not just the perspective of the actors, but also of the relevant groups of actors and the interaction between them (513).

Case studies are also known as a triangulated research strategy. Snow and Anderson

(cited in Feagin, Orum, & Sjoberg, 1991) assert that triangulation can occur with data, investigators, theories, and even methodologies. Stake (514) stated that the protocols that

513 Feagin, Orum, & Sjoberg (Eds.) (1991) A Case for the Case Study; UNC Press Books. 514 Stake (1995) The Art of Case Research; Thousand Oaks, CA: Sage Publications.

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are used to ensure accuracy and alternative explanations are used to triangulate findings, and that the need for triangulation arises from the ethical need to confirm the validity of the claims. In case studies, this is done by using multiple sources of data (515). The challenge with case studies is establishing meaning.

In a multiple case study design, the analysis is performed at two levels: within each case and across the cases. Analysis of these data can be a holistic analysis of the entire case or an embedded analysis of a specific aspect of the cases (Yin, 2009). For this dissertation, I analyzed each of the selected cases for lessons-learned, and these lessons- learned were categorized as either in-common across the cases, or distinct to a specific case.

3.4 Data Collection

I utilized literature reviews, informal interviews with recognized experts using specific questions I developed to guide the discussions (see Table 3-2, Table 3-3, and

Table 3-4), and direct observations of various NNRAs. While described as three distinct phases below, the various data collections took place in parallel, and informed the direction of the other phases.

3.4.1 First Phase – Literature Review

The research was conducted in three in-series phases, with the first phase consisting of reviewing the literature on global governance in general, and nuclear governance in specific, as well as the literature on the development and operation of ICAO, IMO and,

515 Yin (2009) Case Study Research: Design and Methods, Fourth edition; Thousand Oaks, CA: Sage Publications.

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ITU. I focused on determining what lessons, if any, could be gleaned from the research on governance. I analyzed ICAO’s, IMO’s, and ITU’s history, structure, and their recognized strengths and weaknesses to determine insights into best practices and challenges to avoid. In addition, I performed an analysis of several nuclear regulatory regimes in several States, the IAEA, and NEA. I also reviewed IAEA’s Integrated

Regulatory Review Service (IRRS) Mission Reports (516), Convention on Nuclear Safety

(CNS) Country Reports (517), and relevant academic studies.

The results of the literature review are provided in Chapter 2.

It should be noted that, while not specifically included in this dissertation, I also reviewed the literature on governance in other fields, including especially for environmental issues, pharmaceutical manufacture and regulation, and international banking. These three fields have extensive literature on governance issues, and the materials reviewed was very helpful in improving my overall understanding of governance issues.

3.4.2 Second Phase – Informal Interviews

I had initially planned to utilize on-line surveys, followed by formal interviews of selected officials, but was informed by multiple possible participants that they preferred

516 The findings of IAEA audits and reviews have no force of law, and may be made public only if the Member State agrees; as such, some of the material from reviewed IRRS Reports may not be directly quotable. 517 It is recognized that, while the CNS obliges each of the convention’s Contracting Parties (CP), i.e., signatories to the CNS, to submit a triennial report on the measures the CP has taken in the preceding three years to implement its CNS obligations, there are no mechanisms which ensures CPs actually submit these reports, or that the CPs follow the guidance contained in IAEA’s Information Circular (INFCIRC) 572, “Guidelines regarding National Reports under the Convention on Nuclear Safety,” or that the national report be made public by the CP. As such, some of the material from reviewed CNS Country Reports may not be directly quotable.

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informal discussions. This was especially prevalent in the nuclear industry, with one interviewee characterizing what most participants were concerned about with the declaration that “it is a good day when your name doesn’t end up in the Washington

Post.” I therefore utilized informal interviews, under “Chatham House Rule” (518), in order to determine:

1) what recognized experts in the fields of civilian aviation, maritime shipping, and

communications believe are the strengths and weaknesses of the standards- and

practices-setting ICAO, IMO and ITU organizations;

2) what recognized nuclear experts – including those who are regulators and those

who are regulated – believe are the strengths and challenges of the existing

nuclear regulatory regimes in certain States (519); and,

3) what recognized experts believe is the effectiveness of the existing means NNRAs

use to cooperate and exchange best practices.

In addition, in my roles as the Chair of a standards committee and as an officer on various Divisions and Committees within the American Nuclear Society, I made extensive use of meetings to discuss viewpoints from the utilities, academia, and others, on how to better regulate nuclear technologies.

518 “When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.” Chatham House (2002) “Chatham House Rule”; https://www.chathamhouse.org/chatham-house-rule 519 I should note that English is essentially the lingua franca of the nuclear industry, and is used routinely for most multi-national meetings and conferences, with the exception of certain regional meetings. Most IAEA and NEA meetings are held in English, and most senior leaders in the nuclear field can understand English, even if they are not fluent speakers. Therefore, I did not have any significant challenges in conducting my interviews.

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Before conducting the informal interviews, I developed and utilized the questions in

Table 3-2, Table 3-3, and Table 3-4 to guide the discussions, so that I could better understand the reasoning behind the successes and failures of each organization, and the views of the respondent regarding the key components of success. The questions were developed during the early portion of the literature review, and were informally discussed with USNRC colleagues to test out their understanding of the aim of the questions. None of the colleagues who helped test my questions are included as interviewees. It should be noted that these questions were kept consistent through-out the data collection period so as to minimize differences between the early interviews and the last ones. However, insights that offered other avenues to pursue were noted, and are included in Chapter 5 as areas for further research.

The interviewees are summarized in Table 3-5, “Interviewees.”

3.4.3 Third Phase – Direct Observations of Various NNRAs

In the final third phase, I performed direct observations of the efficacy and efficiency of various nuclear regulators, the IAEA, and NEA, to cooperate on regulatory issues and to exchange best practices. This included participating in bilateral and multilateral meetings with various NNRAs, hosting seconded counterparts for cross-training on best- practices, and performing on-site training at various NNRAs’ home offices to share regulatory processes and best-practices (520). I also held discussions on regulatory

520 A specific example of such NGO/regulator interactions would be the World Nuclear Association (WNA) and its expert working group on Cooperation in Reactor Design Evaluation and Licensing (CORDEL). The purpose of CORDEL is to establish a strategy on the standardization of nuclear reactor designs and regulatory certification.

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approaches with several utility-oriented non-governmental organizations (NGOs), including the Nuclear Suppliers Group (NSG), the World Association of Nuclear

Operators (WANO), the Institute of Nuclear Power Operations (INPO), and the Electric

Power Research Institute (EPRI). These NGOs are closely associated with the execution of regulatory requirements, and frequently work with NNRAs to develop new, and modify existing, regulations.

I analyzed and synthesized the results of all three phases into the conclusions that are discussed in Chapter 5.

3.4.4 Data Collection and Analysis

Data collection and analysis was an iterative process, with insights from the literature reviews and informal interviews informing additional areas to review and discuss.

However, after several iterations, I focused on the areas of interest listed in Table 3-2,

Table 3-3, and Table 3-4.

I developed detailed descriptions of the ICAO, IMO, and ITU organizations, as well as IAEA, NEA, selected NNRAs, and regional and thematic cooperative nuclear regulatory networks. These descriptions included how each organization was formed and

The World Nuclear Association is the international organization that promotes nuclear energy and

supports the many companies that comprise the global nuclear industry. WNA membership encompasses

virtually all world uranium mining, conversion, enrichment and fuel fabrication; all reactor vendors;

major nuclear engineering, construction, and waste management companies; and the majority of world

nuclear generation. Other WNA members provide international services in nuclear transport, law,

insurance, brokerage, industry analysis and finance.

(WNA, http://www.world-nuclear.org/WNA/About-WNA/Our-Mission/)

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statutorily enabled; how each organization develops and promulgates its standards and regulations; the benefits of participation, and consequences of not participating, to member nations and organizations (and for the NNRAs, their benefits to participate in organizations like the IAEA and NEA); and, enforcement powers each organization possesses.

In the second phase, the informal interviews began to develop themes, which were tested – when possible – in follow-up discussions, and compared against my analysis of the literature.

For the final third phase, I performed direct observations of the efficacy and efficiency of various nuclear regulators, the IAEA and NEA, and regional and thematic cooperative nuclear regulatory networks. I observed how NNRAs cooperate with other

NNRAs and other entities, i.e., NGOs, IAEA and NEA, regional and thematic cooperative nuclear regulatory networks; how IAEA and NEA cooperate with each other, their member States, and non-members; and, how NNRAs are perceived by their counterparts, the regulated industry, and other stakeholders, especially in their ability to work cooperatively on areas of common interest.

3.4.5 Establishing Credibility

The criteria for judging a qualitative study differ from quantitative research. In qualitative studies, the researcher seeks credibility, based on coherence, insight, and instrumental utility and trustworthiness through a process of verification rather than through traditional validity and reliability measures. The uniqueness of the qualitative study within a specific context precludes its being exactly replicated in another context.

However, statements about the researcher’s positions – the central assumptions, the

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selection of informants, the biases and values of the researcher – enhance the study’s chances of being replicated in another setting (521).

To validate the findings, i.e., determine the credibility of the information and whether it matches reality, I utilized three methods: triangulation (converging different sources of information, including interviews and document reviews); member checking (getting feedback from the participants on the accuracy of the identified categories and themes); and, providing rich, thick descriptions to convey the findings.

While the strengths and weaknesses of case studies and mixed methods designs have been widely discussed in the literature (Feagin, Orum, & Sjoberg, 1991; Stake, 1995;

Yin, 2009), the advantages of a case study design includes: easy to implement for a single researcher; range of cases that can be considered allows consideration of various propositions; and, the ability to explore how areas of interest develop over time.

The limitations of this design include: lack of available/reliable data (especially self-reported data); possible deficiencies in methodology used to collect data; and, existing and unaccounted-for bias of researcher.

3.4.6 Research Permission and Ethical Considerations

The research conducted in this dissertation did not require review by the Institutional

Review Board (IRB) since no ethical issues arose during this study, the research did not involve a sensitive topic (522), and the interviewees were not considered to be in

521 Creswell (2009) Research Design: Qualitative, Quantitative, and Mixed Methods Approaches, Third Edition; Thousand Oaks, CA: Sage Publications. 522 Sensitive topics include, but are not limited to: damaging or stigmatizing information, illegal activities, such as drug use, involvement in criminal behavior, immigration status, if undocumented, opinions about supervisors, health information, etc.

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vulnerable populations (523). Informed consent was verbally granted by each individual who agreed to participate in the interviews.

The anonymity of individual interviews was maintained by the use of numeric identifiers instead of names. All study data will be destroyed after a reasonable period of time. Participants were told that summary data will be disseminated to the professional community, but that Chatham House Rule will be followed.

3.4.7 The Role of the Researcher

As the researcher, my involvement with data collection during this study was as follows:

o I administered the interviews and collected data using standardized procedures;

and,

o I performed data analysis using rigorous analysis techniques and interpreted the

results based on the above outlined process.

Further, I had an active participatory role due to my “sustained and extensive experience with participants” (Creswell, 2009), and personal involvement with the research topic. Specifically, I have been involved professionally in the area I am researching for thirty years, and have actively participated in developing regulatory policies and practices. In addition, as part of my Master’s degree program, I have published policy analyses on this topic. I also know most of the participants through my professional and collateral activities. These experiences introduced a possibility for

523 Vulnerable populations include: children, prisoners, educationally or economically disadvantaged, decisionally- impaired, etc

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subjective interpretations of the phenomenon being studied and create a potential for bias (524).

3.4.8 Limitations

Case studies have several significant limitations (525), including:

o too much data for easy analysis;

o difficult to represent the complexity of the examined cases;

o not normally quantitative in nature;

o not easily generalizable; and,

o are strongest when the researcher’s expertise is strong.

This study generated large quantities of data, which necessitated judgement calls on what was significant and what wasn’t. Further, by design, I actively sought opinions, which may be biased. I tried to mitigate any bias by interviewing as wide a range of senior (526) staff as I could, and to focus on the strengths and challenges that were structural in nature, as opposed to personal annoyances. I also recognized that due to my own seniority within an NNRA, I had certain biases and prejudices that needed to be minimized as I conducted my research, in order that the data could “speak for itself.”

Measurement validity refers to the degree to which a study accurately reflects or assesses the specific concept or construct that the researcher is attempting to measure. In

524 Locke, Silverman, Spirduso, & Walker (2000) “A Novice's Guide to Finding and Deciphering Research Reports”; Psyccritiques, 45(5), 533-535. 525 Reis (2009) “Strengths and limitations of case studies”; Stanford University; https://tomprof.stanford.edu/posting/1013 526 In this instance, “senior” refers both to their rank in their organization and their time in service.

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this study, I have attempted to minimize my preconceptions so as to have conclusions based on my data, and not on my initial perspective.

3.5 Summary of Research Methodology

My research utilized a case study methodology to examine three organizations for lessons-learned that could be applied to a proposed international nuclear oversight organization, and also considered other organizations for additional insights. I discussed the three phases of my research. I recognize several potential limitations to my methodology, and provided my means to mitigate these limitations.

In the next chapter, I will detail the results of my research, and then provide my overall conclusions and recommendations in Chapter 5.

3.6 Tables

Table 3-1: Overview of Methodology

Research Phase: Literature Reviews of Informal Interviews with Direct Observation of Nuclear Regulators and ICAO, IMO, ITU; ICAO, IMO, ITU; others. NNRAs, IAEA, NEA NNRAs, IAEA, NEA

Purpose: Analyze organizational Analyze recognized Analyze efficacy of IAEA, history, structure and strengths and challenges NEA, regional cooperative strengths/weaknesses to of selected regulatory regulatory networks, and determine if they provide regimes. nuclear NGOs to determine illustrative examples for impact, if any, each has on proposed agency. harmonization of nuclear regulations across borders.

Data Sources: o Literature o Interviews o Observation/Interviews

Methods: o Content Analysis o Content Analysis o Content Analysis

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Data Analysis: o Theme Analysis o Theme Analysis o Comparative Analysis o Descriptive Statistics o Comparative Analysis

Potential o Limited generalizability o Limited o Limited generalizability Limitations: generalizability o Potential interview bias o Potential interview bias due to pre-existing views due to pre-existing about cooperation, and views about regulator, potential lack of and potential lack of representative views representative views

Key Related o Tarelko, 2012 o Findlay, 2010 o Baker & Stoker, 2012 Research: o Koppel, 2010 o Bredimas & Nuttall, o Raetzke & Micklinghoff, o Nayar, 1995 2008 2012 o Cowhey, 1990 o Hendrie, 1982 o Colgan, et al., 2011 o Alger, 2008

Table 3-1: Overview of Methodology

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Table 3-2: Topics for Discussion – Strengths and Weaknesses of the ICAO, IMO and ITU

1) What are the strengths of the (ICAO / IMO / ITU)? □ Has clear understanding of its purpose, roles and responsibilities, mandate and functions □ Has its defined mission as its primary focus □ Has independence in carrying out its mission without any undue influence on the part of the (civil aviation / maritime / telecommunication) industry and those sectors of government that promote the (civil aviation / maritime / telecommunication) industry □ Has core technical competence, with other competencies built upon this fundamental and essential requirement □ Is open and transparent in its decisions and outputs □ Develops outputs that are clear and easily understood by all stakeholders □ Makes clear, balanced and unbiased decisions, and is accountable for those decisions □ Has a strong organizational capability in terms of adequate resources, strong leadership and robust management systems □ Performs its functions in a timely and efficient manner □ Has/encourages a continuous self-improvement and learning culture □ Other:

2) What are the most significant challenges facing the (ICAO / IMO / ITU)? □ Lack of sufficient technical expertise □ Lack of necessary legal authority □ Lack of independence □ Lack of financial resources □ Lack of sufficient openness/transparency □ Regulatory capture □ Other:

3) What are good practices and/or structural strengths of other organizations that you believe would be beneficial for the (ICAO / IMO / ITU) to adopt.

4) What are poor practices and/or structural weaknesses of other organizations that you believe would be detrimental for the (ICAO / IMO / ITU) to adopt.

5) What external factors have influenced the ability of the (ICAO / IMO / ITU) to perform its mission, and what you believe can be done to counter, or support, such influences:

6) What protective measures are in place to minimize (ICAO / IMO / ITU) “mission creep,” i.e., the tendency to continue to expand the scope of activities beyond the organization’s original stated objectives, and how effective are they?

7) What are your overall views of the (ICAO / IMO / ITU)? Table 3-2: Topics for Discussion – Strengths and Weaknesses of the ICAO, IMO and ITU

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Table 3-3: Topics for Discussion – Survey of the Strengths and Challenges of Existing Nuclear Regulatory Regimes

1) Using the definition in the Nuclear Energy Agency’s 2014 Green Booklet, “The Characteristics of an Effective Regulator” (NEA No 7185, http://www.oecd-nea.org/nsd/pubs/2014/7185-regulator.pdf), do you consider your national nuclear regulator to be effective? Why or why not?

2) What are the strengths of your national nuclear regulator? □ Has clear understanding of its regulatory purpose, roles and responsibilities, mandate and functions □ Has public safety as its primary focus □ Has independence in regulatory decision making from any undue influence on the part of the nuclear industry and those sectors of government that promote the nuclear industry □ Has core technical competence, with other competencies built upon this fundamental and essential requirement □ Is open and transparent in its regulations and decisions □ Has a regulatory framework and requirements that are clear and easily understood by all stakeholders □ Makes clear, balanced and unbiased decisions, and is accountable for those decisions □ Has a strong organizational capability in terms of adequate resources, strong leadership and robust management systems □ Performs its regulatory functions in a timely and efficient manner □ Has and encourages a continuous self-improvement and learning culture, including the willingness to subject itself to independent peer reviews □ Other:

3) What are the most significant challenges facing your national nuclear regulator? □ Lack of sufficient technical expertise □ Lack of necessary legal authority □ Lack of political independence □ Lack of financial resources □ Lack of sufficient openness/transparency □ Regulatory capture □ Other:

4) Based on your understanding of other national nuclear regulatory regimes, please describe the good practices and/or structural strengths of other national nuclear regulators that you believe would be beneficial for your national nuclear regulator to adopt:

5) Please describe any good practices, even from other industries, that your national nuclear regulator should consider adopting:

6) Should national nuclear regulators have periodic peer reviews to ascertain their strengths and challenges? Why or why not?

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Table 3-3: Topics for Discussion – Survey of the Strengths and Challenges of Existing Nuclear Regulatory Regimes

7) If national nuclear regulators were to be periodically peer-reviewed in order to determine their effectiveness, who should conduct such reviews? □ IAEA, in accordance with the practices embodied in the IAEA’s review, evaluation and appraisal service, such as the Integrated Regulatory Review Service (IRRS) peer-reviews (527) □ Regional cooperative nuclear regulatory networks, e.g., WENRA, FNRBA, ANNuR, ANSN, FORO, FNCA □ Thematic cooperative nuclear regulatory networks, e.g., CANDU Senior Regulators Forum, FRAREG, MDEP, WWER Cooperation Forum □ Ad hoc, i.e., requested review by other national nuclear regulator(s) □ Contracted private management consulting company □ Other regulatory authority within national government □ Intergovernmental nuclear standards-setting organization □ Other:

8) If national nuclear regulators were to be periodically peer-reviewed in order to determine their effectiveness, what methodology should be utilized in conducting such reviews? □ IAEA’s Integrated Regulatory Review Service (IRRS) practices, based on the General Safety Requirements, Part 1, “Governmental, Legal and Regulatory Framework for Safety,” dated September 2010 (http://www-pub.iaea.org/MTCD/publications/PDF/Pub1465_web.pdf) □ Ad hoc quantitative assessment process to be developed in cooperation with selected peer reviewer □ Process developed by intergovernmental nuclear standards-setting organization □ Other:

527 It should be noted that IAEA performs, upon Member States’ request, a variety of safety and security reviews, evaluation and appraisal services, including IRRS, Education and Training Appraisal Service (EduTA), Education and Training Review Service (ETRES), emergency preparedness reviews, engineering safety reviews, nuclear security advisory services, operational safety reviews, radiation safety appraisals, research reactor and fuel cycle facility safety review services, safety assessment reviews, safety culture reviews, site & seismic safety reviews, transport safety appraisals, and waste safety appraisals. However, as previously stated, the recommendations from these reviews are not legally binding on the Member States, nor are the findings required to be made public.

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Table 3-3: Topics for Discussion – Survey of the Strengths and Challenges of Existing Nuclear Regulatory Regimes

9) How should the results of the peer reviews be utilized? □ As an internal bench-marking tool for the national nuclear regulator to identify strengths and challenges that need to be addressed □ As a tool for the national government to utilize to determine efficacy of the regulator: o To provide justification for resource allocations o To determine need for restructuring of the regulator o No follow-up □ To provide information to stakeholders regarding efficacy of the regulator □ Other

10) What should be the periodicity of peer reviews? □ Decadal, with a follow-up to ascertain progress on resolving identified challenges after: • Two years • Five years • No follow-up • Other □ Every five years, with a follow-up to ascertain progress on resolving identified challenges after: • Two years • No follow-up • Other □ No standard periodicity, only as requested by the national nuclear regulator, with a follow-up to ascertain progress on resolving identified challenges after: • Two years • Five years • No follow-up • Other □ Other:

11) Should the results of the peer reviews be made public? Why or why not?

12) What are your overall views on peer reviews to provide quantitative assessments of the performance of a national nuclear regulator? Table 3-3: Topics for Discussion – Survey of the Strengths and Challenges of Existing Nuclear Regulatory Regimes

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Table 3-4: Topic for Discussion – Efficacy and Efficiency of Existing Means for Nuclear Regulators to Cooperate

1) Does your national nuclear regulator participate in existing international regulatory cooperative fora such as IAEA’s International Regulatory Network (RegNet), or regional or thematic cooperative regulatory networks? Why or why not?

2) What are the advantages of participating in international regulatory cooperative fora? □ IAEA’s RegNet provides appropriate support and information □ Regional/thematic cooperative regulatory networks provide appropriate support and information □ Ability to connect with established regulatory authorities to request support and information □ Ability to connect with other emerging regulatory authorities □ Other:

3) What are the disadvantages of participating in international regulatory cooperative fora? □ IAEA’s RegNet does not readily provide requested support or information □ Regional/thematic cooperative regulatory networks do not readily provide support and information □ Connection with established regulatory authorities does not lead to requested support and information □ Connect with other emerging regulatory authorities does not provide needed insights □ Other: Table 3-4: Topic for Discussion – Efficacy and Efficiency of Existing Means for Nuclear Regulators to Cooperate

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Table 3-5: Interviewees

Interviewee Organization Date

5 NNRA representatives from Spain, IAEA 2014 February Slovakia, Slovenia, Switzerland, U.K. and 3 IAEA staff

5 NNRA representatives from Armenia, IAEA 2014 July Czech Republic, France, Germany, Russian Federation, and 2 IAEA staff

4 INPO Representatives INPO 2015 April

12 NNRA representatives from Canada, NEA 2015 June Czech Republic, France, Germany, Japan, Mexico, Russian Federation, Slovenia, Republic of Korea, Spain, Sweden, U.K., and 3 NEA staff

15 U.S. Industry Representatives SDO 2015 June representing 5 utilities, 4 vendors, 6 national laboratories

25 NNRA, TSO, and industry EUROSAFE Forum 2015 November representatives from Czech Republic, (international Finland, France, Germany, Hungary, conference on nuclear safety and security, Slovakia, Slovenia, Spain, Sweden, radioactive waste Switzerland, and European Union (EU) management and radiological protection) 15 NNRA representatives from Canada, NEA 2015 November Czech Republic, France, Germany, Japan, Mexico, Russian Federation, Slovenia, Republic of Korea, Spain, Sweden, U.K., and 4 NEA staff

15 governmental representatives from Fissile Materials 2016 March Argentina, Belgium, Brazil, India, Working Group Kazakhstan, Republic of Korea, Lithuania, Nuclear Security Pakistan, Philippines, South Africa, Summit Ukraine, IAEA, and EU

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Table 3-5: Interviewees

Interviewee Organization Date

12 U.S. Industry Representatives SDO 2016 June representing 3 utilities, 5 vendors, 4 national laboratories

15 U.S. Industry Representatives SDO 2016 November representing 4 utilities, 3 vendors, 5 national laboratories

12 U.S. Industry Representatives SDO 2017 June representing 3 utilities, 3 vendors, 5 national laboratories

15 U.S. Industry Representatives SDO 2017 November representing 3 utilities, 4 vendors, 5 national laboratories

10 U.S. Industry Representatives SDO 2018 June representing 2 utilities, 3 vendors, 4 national laboratories

12 U.S. Industry Representatives SDO 2018 November representing 3 utilities, 4 vendors, 4 national laboratories

10 U.S. Industry Representatives SDO 2019 June representing 2 utilities, 2 vendors, 4 national laboratories

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Table 3-5: Interviewees

Interviewee Organization Date

3 interviews with representatives from US FAA (ICAO) 2015 September, 2018

Federal Aviation Administration (ICAO); July, 2019 April

2 interviews with representatives from US 2015 September, 2019 USCG (IMO) Coast Guard (IMO); and 2 interviews with May representatives from US Federal 2015 October, Communication Commission (ITU) FCC (ITU) 2019 April

Total number of interviews: 145 interviews with 83 interviewees

Table 3-5: Interviewees

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4 Chapter 4: Research Results

This chapter provides the results of my research, including an overview of the similarities and challenges faced by the ICAO, IMO, and ITU; and, how the experiences of the

IAEA, NEA, and other nuclear organizations may inform the development and advancement of nuclear oversight and governance.

4.1 Introduction

In Chapter 1, I proposed that there is a need for a new autonomous, competent, and authorized international nuclear oversight organization that could support and augment the capabilities and competencies of NNRAs that oversee the safety and security of nuclear energy programs in their respective States.

I suggested that global adherence to a common set of nuclear regulatory standards would improve nuclear safety, security, and safeguards world-wide. Presently, each

NNRA either indigenously develops their own national nuclear regulatory regime, or adapts the regulatory framework used by the reactor-supplying State into their own regulatory regime. These individual regimes may not incorporate best-practices and lessons-learned from other NNRAs or current state-of-the-art research results, may impose requirements that makes obtaining nuclear reactor technology from vendors in other States challenging, or may not be adequate to ensure that nuclear energy is utilized safely and securely.

I proposed two research questions to investigate:

5) What are the lessons learned from intergovernmental organizations that create

globally-utilized standards and regulations which could be applied to assist in

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developing an international nuclear regulatory agency that could provide

reasonable assurance of the safe and secure operation of commercial nuclear

power globally?

6) What are the options to empower an international nuclear regulatory agency, e.g.,

international treaties, in order to ensure that it has the necessary resources and

authority to facilitate safe and secure nuclear power usage?

To answer these questions, I utilized literature reviews (discussed in Chapter 2), informal interviews with recognized experts using specific questions I developed to guide the discussions, and direct observations of various NNRAs. I specifically examined two existing nuclear-related IGOs, IAEA and NEA. I also examined three specialized UN agencies – the International Civil Aviation Organization (ICAO), the International

Maritime Organization (IMO) and the International Telecommunications Union (ITU).

Finally, I observed several NNRAs, including those for the States of Japan, Korea, Viet

Nam, Armenia, Czech Republic, and France.

4.2 Results

4.2.1 Examination of Specialized UN Agencies – ICAO, IMO, and ITU

4.2.1.1 International Civil Aviation Organization (ICAO)

As described above, ICAO develops standards and recommends practices to facilitate safe and secure civil aviation, which is then utilized by participating States in developing their own civil aviation regulatory regime. I utilized the questions in Table 3-2 to inform my discussions with staff from the U.S. Federal Aviation Administration (FAA), the

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federal agency that represents the U.S. with ICAO. These questions were posed in a dual fashion – looking at ICAO’s operations, and how well FAA deals with ICAO.

In general, the interviewees believed that ICAO has a clear understandings of its purpose, roles and responsibilities, mandate and functions. In addition, the interviewees stated that FAA understands its role and responsibilities in applying ICAO standards and recommendations to U.S. civil aviation, and that both organizations are appropriately focused on their primary safety and security missions.

While the FAA, like most federal agencies, is lobbied by the civil aviation industries to minimize new or expanded requirements, the interviewees reported that neither ICAO nor the FAA are adversely impacted by external (528) attempts to influence the development of standards and practices, or in applying the regulatory regime.

Specifically, the interviewees believe that neither ICAO nor the FAA have experienced

“regulatory capture” by either their constituents, in ICAO’s case, or the regulated industry, in the FAA’s case.

Interviewees reported that both organizations have sufficient core technical competencies, that both are appropriately transparent in their decision making, and that both make balanced and technically defensible decisions. Timeliness of decisions is always a concern with governmental agencies and IGOs, but the opinion was expressed that, in general, resources are directed and prioritized based on a consideration of needs, but that a major incident will cause a refocusing of resources.

528 In this context, “external” influences would include the regulated industries and members of the public.

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The major challenge expressed about ICAO was a concern related to national interests. Since ICAO relies on its membership to develop its standards and recommendations, the interviewees identified a need for continuing strong U.S. involvement so that U.S. national equities are represented and considered when developing or modifying ICAO standards and recommendations. This concern relates to the above question on regulatory capture, in that if States are not actively engaged in

ICAO activities, they run the risk of being presented with standards and recommendations that may give an advantage to other member States, to the detriment of the U.S. (529)

With regard to good practices and weaknesses from other organizations, there were few suggestions offered by the interviewees. However, external factors influencing

ICAO involved security concerns primarily, which could impact the traveling public.

Examples include both overt terrorism issues and unintentional acts, which have resulted in new regulations for more invasive security screenings. For instance, Richard Colvin

Reid became known as the “Shoe Bomber” in 2001 after attempting to detonate explosives hidden in his shoes. Umar Farouk Abdulmutallab became known as the

“Underwear Bomber” in 2009 when he attempted to detonate explosives he had hidden in his underwear. A third example was the 2010 attempt to detonate bombs hidden in printer cartridges carried in the cargo holds of passenger and cargo aircraft. Examples of unintentional acts includes the 2009 screenings of passengers for elevated temperatures

529 In the various interviews I had with senior individuals in the nuclear energy sector, the aphorism “if you’re not at the table, you’re on the menu,” was utilized with some frequency as shorthand for the need to be actively engaged with policy makers.

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before they were allowed to deplane during the H1N1 influenza pandemic, which has become a more common practice since, and the increased regulations on the operation of unmanned aircraft (“drones”).

The interviewees didn’t express significant concern about “mission creep,” mostly due to their belief that both the FAA and ICAO tends to self-focus.

Finally, the interviewee’s overall assessment of ICAO was generally positive, with the repeated caveat about the above concern over the need for a strong and continuing

U.S. involvement in ICAO activities.

Insights from the ICAO literature review and FAA interviews are provided below.

4.2.1.2 International Maritime Organization (IMO)

As described in above, IMO develops standards and is responsible for several treaties designed to facilitate safe and secure maritime activities, and to protect the environment.

I utilized the questions in Table 3-2 to inform my discussions with staff from the U.S.

Coast Guard (USCG), the federal agency that represents the U.S. with IMO. Similar to

ICAO, these questions were posed in a dual fashioned – looking at IMO operations, and also how well the USCG deals with IMO.

In general, the interviewees agreed that IMO has a clear understandings of its purpose, roles and responsibilities. In addition, the interviewees stated that the USCG understands its role and responsibilities in applying IMO standards to U.S. maritime shipping, and that both organizations are appropriately focused on their primary safety and security missions.

Similar to the responses from the FAA interviewees, the USCG interviewees stated their opinion that neither the USCG nor IMO is unduly influenced by external attempts to

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prevent or minimize the impacts of potentially expensive-to-implement or follow standards and practices, or to decrease the regulatory oversight.

Also like ICAO and the FAA, the interviewees were of the opinion that both IMO and the USCG have sufficient core technical competencies, that both are appropriately transparent in their decision making, and that both make balanced and technically defensible decisions.

The USCG echoed the FAA concern regarding the need for a strong U.S. involvement in IMO activities, for much the same reasons as the FAA had.

The interviewees did not express an opinion regarding good practices and weaknesses from other organizations, nor did they express a concern about mission creep, mostly due to the relatively narrow focus of the two organizations.

In general, the interviewees expressed a general positive view of IMO.

Insights from the IMO literature review and USCG interviews are provided below.

4.2.1.3 International Telecommunications Union (ITU)

As described above, ITU develops standards that are utilized globally to facilitate a variety of telecommunication activities. I utilized the questions in Table 3-2 to inform my discussions with staff from the U.S. Federal Communications Commission (FCC), the federal agency that represents the U.S. with ITU. Similar to ICAO and IMO, these questions were posed in a dual fashioned – looking at ITU operations, and also how well the FCC deals with ITU.

In general, the interviewees agreed that ITU understands its roles and responsibilities.

In addition, the interviewees stated that the FCC understands its role and responsibilities in utilizing ITU standards in U.S. telecommunication regulations and requirements.

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There was a concern voiced by the interviewees that ITU has to guard against undue influence, mostly from the large number of Sector Members that represent non- governmental interests. There was general agreement by the interviewees that both ITU and the FCC has sufficient core technical competencies to accomplish their respective missions.

Similar to the FAA and USCG interviewees, the FCC interviews expressed the need for a strong U.S. involvement in ITU activities, especially considering the concern raised about the Sector Members possible influence.

There were few suggestions offered by the interviewees regarding the possible adoption of good practices, or concerns to be guarded against regarding weaknesses, from other organizations.

In general, the interviewees expressed a general positive view of ITU.

4.2.1.4 Conclusions from Examination of ICAO, IMO, and ITU

Based on my review of the literature on ICAO, IMO, and ITU, and my interviews with FAA staff involved in ICAO activities, USCG staff involved in IMO activities, and

FCC staff involved in ITU activities, I developed four significant lessons learned. These include:

1) The benefits of participation is significant, but that there can be economic

consequences for not adhering to the guidance. For instance, the IMO’s 2004

International Convention for the Control and Management of Ships’ Ballast

Water & Sediments, meant to control the spread of invasive aquatic species,

meant that maritime shipping companies either had to install expensive onboard

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water treatment systems to keep harmful organisms out of their ballast tanks, or

they were forced to dispose of the non-conforming ships.

2) In contrast to the first lesson learned, a State can still benefit even it doesn’t

observe every regulation, standard, and practice, if it does so within the

established rules of non-conformance. As an example, the FAA does not follow

ICAO standards on the qualifications and training of meteorological personnel

providing service for international air navigation, instead relying on standards

developed by the U.S. National Weather Service. The FAA appropriately took

this exception, and ICAO concurred.

3) Even though there are significantly higher levels of health and life risks to

passengers and crews of civil aviation and maritime travel and shipping than to

the public and workers from nuclear power plants (530), as well as economic and

security risks from cyber-attacks, there is still a perception that nuclear energy is a

more immediate concern. For instance, while the rates are slowly declining, there

was 1,989 civilian airline accidents between 1959 and 2019, which resulted in

31,042 fatalities (531). In the same period, there were three significant nuclear

power plant accidents, with about 50 fatalities from the Chernobyl accident. The

public’s perception of actual risks versus the assumed hazard will need to be

addressed if nuclear energy is to be accepted.

530 Stamatakis, et al. (2017) “Maritime illness and death reporting and public health response, United States, 2010- 2014”; Travel Medicine and Infectious Disease, Vol. 19: 16-21. doi:10.1016/j.tmaid.2017.10.008 ICAO (2019) “Accident Statistics”; https://www.icao.int/safety/iStars/Pages/Accident-Statistics.aspx 531 Boeing (2017) “Statistical Summary of Commercial Jet Airplane Accidents – Worldwide Operations, 1959–2017”; http://www.boeing.com/resources/boeingdotcom/company/about_bca/pdf/statsum.pdf

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4) Organizations like ICAO, IMO, and ITU, exist because they provide tangible

benefits to the participating States, but all three organizations could be rendered

obsolescent if a sufficient number of States determined it was in their best

interests not to participate and instead opted to set competing regulations and

standards. To illustrate this, if a peer or near-peer competitor decided to become

an adversary, it could utilize asymmetrical methods to weaken its stronger foe,

including economic attacks such as providing alternative and lower-cost

regulatory regimes for civil aviation or maritime shipping (532). Such a scenario

could significantly weaken the regulatory regimes that ICAO, IMO, and ITU

provide.

4.2.2 Examination of IAEA and NEA

As discussed previously, neither the IAEA nor the NEA has the statutory authority to mandate adherence to any of the guidance either organization produces. It should also be noted that the guidance documents the IAEA and NEA develop are very high-level, similar to floor plans as opposed to a complete set of architectural drawings. As such, an

NNRA that wishes to utilize these guidance documents will need to flesh out the recommendations so as to have technically sufficient, and legally supportable, requirements to regulate against.

532 Slater, Purcell, and Del Gaudio (ed) (2019) “Considering Russia: Emergence of a Near Peer Competitor”; Marine Corps University Press; https://www.usmcu.edu/Portals/218/CAOCL/files/ConsideringRussia%20(004).pdf

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4.2.2.1 IAEA

IAEA is actively involved in promoting nuclear energy, and allocates significant resources to expediting meetings on various technical and policy subjects, and in developing high-level guidance documents related to both the outcomes of these meetings and to promote the use of nuclear energy. However, it has been my experience that IAEA staff see their key role as facilitators, with the expectation that their member

States will both bear most of the expenses, and be responsible for the large majority of the actual effort, required to conduct these meetings and create the various documents.

The guidance documents that IAEA publishes are generally focused more on aspirational expectations, as opposed to setting clear and actionable directions and standards. For instance, IAEA’s 2017 report, “Managing the Financial Risk Associated with the Financing of New Nuclear Power Plant Projects (No. NG-T-4.6),” devotes five pages out of 70 to the topic investing in a nuclear new build project. IAEA’s 2019

“Handbook for Regulatory Inspectors of Nuclear Power Plants (IAEA-TECDOC-1867),” devotes 12 of its 69 pages to the process of developing a regulatory inspection. In contrast, the USNRC’s Inspection Manual has over 200 chapters and appendices, and more than a thousand pages in length (533).

In addition, since IAEA’s guidance documents are created mostly by staff from various NNRAs who attend the technical meetings, in a manner analogous to the creation of consensus standards by SDOs like ASME and IEEE, it is not surprising that the guidance is focused on the lowest common denominator so as to have the greatest

533 USNRC (2019) “Inspection Manual Chapters”; https://www.nrc.gov/reading-rm/doc-collections/insp- manual/manual-chapter/

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applicability to a very disparate set of end users. In short, the IAEA’s guidance documents lacks the necessary specificity that would allow them to be beneficial to poorly resourced or technically-challenged NNRAs as stand-alone documents.

In my informal interviews with permanent and seconded (534) IAEA Department of

Nuclear Energy staff (535), I utilized the questions from Tables 3-3 and 3-4 to inform and direct the discussions.

In general, the interviewees acknowledged that most NNRAs are lacking in technical expertise and financial resources, both de jure and de facto authority, and political independence. The interviewees also expressed the countervailing view that, within the constraints of these deficits, that most NNRAs maintain a strong focus on nuclear safety and security, and strive to perform their oversight duties in a professional manner.

The interviewees were strongly in favor of the NNRAs working more closely with

IAEA, especially in the areas of technical exchanges. Of particular interest was that

NNRAs would benefit from expanded participation in IRRS and IPPAS missions, both in receiving and as team members, with the intent that these missions would allow the participants to gain useful insights from other reviewed NNRAs that could be transferred to their home NNRA.

534 IAEA actively seeks senior staff from NNRAs for secondment assignments of 3-5 years. 535 The IAEA’s Department of Nuclear Energy “fosters sustainable nuclear energy development by supporting existing and new nuclear programmes around the world. It provides technical support on the nuclear fuel cycle and the life cycle of nuclear facilities, and builds indigenous capability in energy planning, analysis, and nuclear information and knowledge management.” IAEA (2019) “Department of Nuclear Energy”; https://www.iaea.org/about/organizational- structure/department-of-nuclear-energy

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The interviewees were mostly dismissive of the value of regional cooperative nuclear regulatory networks, with one interviewee summing the general sentiment about these networks by describing them as “book clubs” where little of note was accomplished.

Interestingly, the interviewees were more accepting of the thematic networks, viewing them as more valuable for their focus on exchanging technical data and operating experience lessons learned.

In general, IAEA interviewees were in favor of an increased role for the IAEA in facilitating technical and regulatory exchanges between the more mature NNRAs and the smaller and more recent NNRAs. When asked why this facilitation required the IAEA, the interviewees offered that IAEA is a recognized authority and is generally considered to be nonpartisan. When I pointed out that there is an understood, if unacknowledged, practice of selecting IAEA management and staff so as to provide a reasonable level of balance between the member States, the response was that by doing so, IAEA remained non-partisan.

When questioned about what would be needed for IAEA to take a more active role, similar to ICAO, IMO, or ITU, in developing a regulatory infrastructure that NNRAs would harmonize their existing oversight regimes with, all of the interviewees assured me that it was possible, but that doing so would require a strengthening of the IAEA’s legal authority and a significant increase in the IAEA’s funding and staffing to both develop such an regulatory infrastructure and to oversee the adoption of same by NNRAs. The timeline for doing was estimated by the interviewees as between three and ten years.

Based on my review of the literature, IAEA’s actions and guidance, interviews with permanent and seconded IAEA staff, and my active participation in IAEA activities, and

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with due consideration of the above assurances that IAEA could take on a more active role in nuclear oversight, I have concluded that IAEA does not have the attitudes or the inclination to become an international nuclear oversight organization of the type I propose. I do not doubt the interviewees belief that IAEA could expand its mission in such a fashion, but I do harbor strong reservations that culturally IAEA is to wedded to its promotional past to successfully transition to a regulator.

Further, based on its dual obligations – to promote the use of nuclear science and technologies, and to verify adherence to the NPT – the organization has at times a somewhat schizophrenic perspective. IAEA has one portion that is actively proselytizing the expansion of nuclear energy, while another side is concerned about undetected proliferation from the illicit application of dual-use technologies. While I did not interview staff from IAEA’s Department of Safeguards, which is responsible for ensuring acceding States’ adherence to the NPT, based on the interviews I had with staff from the

Department of Nuclear Energy, I believe that IAEA could better accomplish its promotional activities, including supporting NNRAs, if the NPT responsibilities were divested into a new organization.

4.2.2.2 NEA

The NEA, at first blush, is a more restricted-access version of the IAEA, and there is a certain accuracy to that impression. The NEA provides a forum for cooperation between the NNRAs of the States with the largest share of NPPs, and it facilitates shared- cost research and information exchanges. The guidance NEA develops from this research and information is intended to be “…input to government decisions on nuclear

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energy policy (536)”. However, unlike the IAEA, whose membership is virtually global in

scope, the NEA is focused primarily on its members.

As with IAEA, in my informal interviews with NEA staff, I utilized the questions

from Table 3-3 and Table 3-4 to inform and direct the discussions.

In general, the NEA interviewees were of the opinion that most NEA NNRAs have,

in general, sufficient technical expertise and financial resources, adequate de jure and de

facto authority, and appropriate political independence to be able to carry out their

oversight functions. This perspective differs from mine, as articulated in Chapter 1, and

the IAEA interviewees, but from a strictly OECD perspective, the various NNRAs that

are members of the NEA do have more resources, authority, and independence than most

NNRAs.

While IAEA interviewees were strongly in favor of NNRAs working more closely

with IAEA, NEA interviewees focused on the value that NEA offered in the areas of

technical cooperation. However, NEA interviewees were not strongly in favor of NEA

having a more active role in developing regulatory infrastructures that its member

NNRAs could adopt, but were rather more focused on the NEA’s member NNRAs work

to harmonize their individual regulatory regimes with each other.

Similar to the IAEA interviewees, the NEA interviewees found value only in the

Western European Nuclear Regulators Association (WENRA) and the European Nuclear

Safety Regulators Group (ENSREG) regional cooperative nuclear regulatory networks,

and with the thematic networks.

536 NEA (2019) “The Strategic Plan of the Nuclear Energy Agency: 2017-2022”; http://www.oecd- nea.org/general/about/strategic-plan2017-2022.pdf

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In general, NEA interviewees were less in favor of an increased role for the NEA in facilitating technical and regulatory exchanges between its member NNRAs and non- member NNRAs. When asked why, the interviewees suggested that IAEA would be a more acceptable facilitator for such exchanges.

Based on my review of the literature, NEA’s actions and guidance, interviews with

NEA staff, and my active participation in NEA activities, I am in agreement that NEA does not have the inclination to become an international nuclear oversight organization of the type I propose. Further, based on active participation in NEA activities, I have determined that there exists a certain competitiveness between the members as to whose perspective and whose interpretation of events and data will be accepted. I have determined that NEA performs well at facilitating shared-cost research and information exchanges, but it is not set up to develop regulatory guidance and frameworks such that it could become an international nuclear oversight organization of the type I propose.

4.2.3 Examination of NNRAs

As with IAEA and NEA, in my informal interviews with various NNRA staff in multiple fora, I utilized the questions from Tables 3-3 and 3-4 to inform and direct the discussions.

With regards to the effectiveness of their parent NNRA, all those interviewed stated that their respective NNRA is effective, but over half caveated this declaration. Most admitted to the challenges they have with resources, and about a third – mostly those from NNRAs that are embedded in a ministry that advocates for nuclear – expressed concerns over their ability to make regulatory decisions that would not be overridden at a higher level in their government, especially if the decision resulted in the shutdown of an

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NPP. However, all of those interviewed were committed to accomplishing their mission of ensuring the safety and security of NPPs.

Regarding the strengths of their NNRA, virtually all interviewees agreed that there was a clear understanding regarding its purpose, roles, and responsibilities, and that public safety was their NNRA’s primary focus. From there, agreement quickly fell off.

About half felt that their NNRA was relatively free of significant external influence – essentially, there was a denial of regulatory capture. The other half was concerned with the influence their respective Minister could exert on regulatory decisions, although few suggested that such involvement was common. There was some concern, voiced by a handful of interviewees, that political considerations sometimes had to be factored into regulatory decisions.

Most interviewees agreed that they had the necessary core technical competencies to perform their mission, but there was also an acknowledgement that their “bench strength” was thin, and this lack of sufficient technical expertise sometimes impacted the timeliness of regulatory decisions. The more significant challenges the interviewees acknowledged were resources – both in-house technical expertise and funding issues, and – about half – the challenge of regulating a nationalized nuclear energy industry. Most of those interviewed from NNRAs embedded in promotional ministries wanted independence, similar to when the USAEC was split into the USNRC and what became the USDOE, but there were also a few interviewees who voiced concerns that to successfully do so would also mean a stronger legal standing would have to be accomplished simultaneously.

Mostly, these several interviewees acknowledged that providing the necessary de jure authority for a newly independent NRRA could be a relatively straight-forward action,

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but their concern focused mainly on how to ensure the NRRA would have the necessary corresponding de facto authority in addition.

About half of the interviewees were puzzled over my questions about openness and transparency in their regulatory decision making, and with the members of the public.

This is reminiscent of the USEAC and the early days of the USNRC, where involvement with the public was considered to be fraught with unneeded challenges.

All interviewees expressed an interest in information exchanges and learning from others, but by the end of my USNRC tenure in late 2016, there was a change in the international perception of the USNRC. More and more, the USNRC was not seen as the

“gold standard” for other NNRAs to emulate, but rather as an organization past its prime.

One interviewees pointed out that since the U.S. wasn’t building new and innovative reactor designs, and that there were significant barriers to U.S. firms to conduct business in other States, NNRAs should pay less attention to the USNRC and more to the NNRAs in those States, like the Russian Federation and the PRC, that are actively engaged in new construction and sales.

Regarding what good practices NNRAs could adopt, few interviewees had any suggestions, and most of those that did discussed the desire to have more opportunities to move between postings, such as being an inspector, a subject matter expert, or an operator. However, most of the interviewees who expressed a recognition that more opportunities would provide the NNRA with a more fungible staff also acknowledged that the very lack of staffing made such cross-training challenging.

There was near unanimity by the interviewees on the value periodic peer reviews to benchmark performance would have for their NRRA. There was almost equal unanimity

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by the interviewees to participate on such bench-marking peer reviews. Virtually all agreed that getting input from peers, who had similar challenges and may have recommendations of best practices seen elsewhere, is valuable.

While there was clear agreement about the value of peer reviews, there was less so on who should perform them. As seen by the reviews performed before the Fukushima accident, the interviewees raised concerns that IAEA IRRS missions were focused more on “telling a good story” than on providing hard truths. There was also concerns expressed that the regional and thematic cooperative nuclear regulatory networks may not have the necessary experience to conduct such reviews. No interviewee was in favor of contracting private firms, or asking other regulatory authorities within their own government to conduct such reviews. One interviewee observed that other agencies within his government do not understand the nuclear area enough to provide insights of any value. In the end, most interviewees agree that the IAEA’s IRRS missions are the least bad option presently available.

There were some concerns raised by a few of the interviewees that their national government might use peer review results in a negative manner, such as a reason to further weaken the NNRA. However, most interviewees agreed that the results of peer reviews were best utilized as a bench-mark that the NNRA would then use to focus on areas for improvement. While the USNRC makes it a practice to release its IRRS results to the public, most of those interviewed disagreed, with the most often voiced concern being that only the negative aspects of the review would be focused on.

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Most interviewees agreed that the periodicity of peer reviews should not be too often, nor should it be too infrequent. As such, the majority of interviewees thought every five years was the right frequency, with a low of four years and a high of seven.

There was a consensus by the interviewees on the undesirability for quantitative peer review rankings, in that none of those interviewed wanted a 1-to-n listing of NNRAs, since there was a concern about showing up in the bottom tier.

According to the interviewees, a majority of NNRAs, especially those from

Developing States, have actively participated in the IAEA’s RegNet, and/or regional or thematic cooperative regulatory networks. The reasons for participating could be best summarized that by doing so, the NNRA’s thin resources were augmented, since these external sources were viewed as sources of information and insights. However, there was no agreement by the interviewees that IAEA’s RegNet, or the regional/thematic cooperative regulatory networks, were able to reliably provide staffing support. In addition, there was a concern raised by a majority of the interviewees that information requests to RegNet and the regional/thematic cooperative regulatory networks were not routinely responded to by other NNRAs in a timely manner.

When asked if IAEA should be strengthened into a global regulatory body, or if a new international nuclear oversight organization should be created with such a mandate, there was near unanimity by the interviewees on the undesirability of such an organization. No one wanted to surrender autonomy over national assets like NPPs to an external organization. Further, while virtually every interviewee approved of having a resource to aid technically, there was a similar concern over being forced into accepting externally-created regulations and standards without the option of being able to modify to

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fit local conditions. Event those who agreed that such an organization would be of value could not conceive of a mechanism that would allow its creation and use.

4.3 Conclusions

Based on my review of the relevant literatures, my active participation in IAEA and

NEA meetings and conferences, bilateral and multilateral meetings with other NNRAs, an IAEA Integrated Regulatory Review Service Mission, and my active involvement in regulatory exchanges and training missions at six NNRA, as well as my interviews with staff from the FAA, USCG, and FCC regarding ICAO, IMO, and ITU, respectively, I have concluded that my initial assumptions were flawed, and that there is not presently a good model for creating an international nuclear oversight organization as proposed.

Specifically, the ICAO, IMO, and ITU models are valid for facilitating international commerce, and there are considerable benefits to adhering to their respective guidance, and there can be economic consequences for States that do not. However, for the most part, NPPs do not cross borders, and there are corresponding fewer economic incentives to standardize practices. Further, nuclear energy is seen as a “game-changer” technology, a sign of achieving greater status, especially for Developing States, and they are therefore less willing to submit to external control. While the benefits of a consistent nuclear regulatory regime globally could expedite increased, and safer and more secure, use of nuclear energy, there is no compelling driver at this time to move towards such an organization.

However, since both the Russian Federation and the PRC are actively using nuclear energy as a means of increasing their respective influence globally, there may come a

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time in the near future when there are two such organizations – one that speaks Russian and the other Chinese.

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5 Chapter 5: Conclusions and Recommendations

This chapter provides the conclusions, recommendations, and areas for future research.

5.1 Summary

In Chapter 1, I suggested that global adherence to a common set of nuclear regulatory standards, vice having disparate, and often conflicting, indigenously-developed or - adapted (i.e., provided by the reactor-supplying State) national nuclear regulatory regimes would improve nuclear safety, security, and safeguards world-wide. As such, I proposed that there is a need for a new autonomous, competent, and authorized nuclear oversight intergovernmental organization that could support and augment the capabilities and competencies of NNRAs that oversee the safety and security of nuclear energy programs in their respective States.

I proposed two research questions:

7) What are the lessons learned from intergovernmental organizations that create

globally-utilized standards and regulations which could be applied to assist in

developing an international nuclear regulatory agency that could provide

reasonable assurance of the safe and secure operation of commercial nuclear

power globally?

8) What are the options to empower an international nuclear regulatory agency, e.g.,

international treaties, in order to ensure that it has the necessary resources and

authority to facilitate safe and secure nuclear power usage?

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To answer these questions, as discussed in greater detail in Chapter 2, I reviewed the literature on global governance in general, and on energy governance in specific. I examined the literature on three specialized UN agencies – the International Civil

Aviation Organization, the International Maritime Organization, and the International

Telecommunications Union – which promote the safe and secure development and operation of international civil aviation and maritime shipping (ICAO and IMO, respectively), and organize and standardize telecommunications globally (ITU). I interviewed representatives of the U.S. organizations that primarily interact with, and implement, ICAO, IMO, and ITU standards and guidance, as shown in Table 3-X. In addition, I examined existing nuclear-related IGOs, the International Atomic Energy

Agency, the OECD’s Nuclear Energy Agency, and the Nuclear Suppliers Group; various regional cooperative nuclear regulatory networks; and, a number of NNRAs.

While not specifically interviewed for this dissertation, on approximately twenty occasions during the last three years I was with the U.S. Nuclear Regulatory

Commission, I lead formal meetings with members of the public, including intervenor groups, and had many informal discussions with the participating members of the public before the meetings on their opposition to, and support for, nuclear power; and, these conversations with members of the public helped inform my conclusions.

5.1.1 First Question

5.1.1.1 ICAO, IMO, and ITU Lessons Learned

With regards to the first question, determining lessons learned from the three intergovernmental organizations examined and how these lessons could be applied to

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assist in developing the proposed international nuclear regulatory agency that could provide reasonable assurance of the safe and secure operation of commercial nuclear power globally, I developed four conclusions (lessons learned) about these organizations: there needs to be an economic incentive; full participation is not required; the public has differing risk perspectives to nuclear when compared to civil aviation, maritime shipping, and telecommunications (537). If States opt to offer competing regulations and standards, the value of the IGO can be damaged.

The first conclusion is that States need to have a strong economic incentive to participate in intergovernmental organizations such as ICAO, IMO, and ITU. All three of these organizations provide significant benefits to their participating States, and the financial impact to a State not complying with the guidance and regulations developed by

ICAO, IMO, or ITU can be substantial.

An example would be the Red Flag rating ICAO imposed in 2015 on the Civil

Aviation Authority of Thailand (CAAT) due to significant safety concerns of inadequate safety oversight of Thai-registered air carriers. This Red Flag substantially, and negatively, impacted the ability of Thai-registered air carriers to operate internationally.

In 2017, following a subsequent review of CAAT’s actions to address the 2015 concerns,

ICAO determined that sufficient actions had been taken to warrant lifting of the Red Flag rating. The lifting of the Red Flag allowed Thai-registered airlines to expand their

537 Hammond (2015) “Nuclear Power, Risk, and Retroactivity”; Vanderbilt Journal of Transnational Law, 48, 1059.

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international service, which was an economic benefit to Thailand, especially from the corresponding growth of tourism (538).

A second lesson learned is that it is possible to gain significant benefits from participation even if a State doesn’t adhere to strictly every guidance and regulation promulgated.

An example of this would be States that have not signed onto IMO 2020, a requirement that goes into effect January 1, 2020, that requires signatory States to use marine fuels with significantly lower levels of sulfur, in an attempt to reduce greenhouse gas emissions. However, this changeover to low-sulfur fuels will sharply increase the cost of fuel, which will have the ripple-effect of also increasing shipping costs. Further,

IMO environmental regulations include the principle of “no more favorable treatment”

(NMFT), which requires that any State which is a party to a particular treaty must apply the rules of that treaty to all the ships that stop in that State’s ports, regardless of the flag of that ship, including ships that are flying the flag of a State which is not a party to the particular instrument (539). Therefore, if a State is not party to IMO 2020, that State can continue to trade with other States that have not converted their maritime shipping to be compliant with IMO 2020, which reduces the costs of shipping (but also doesn’t decrease the air pollution from these non-compliant ships).

The third significant lesson-learned from ICAO, IMO, and ITU is that their respective industries – international civil aviation, maritime shipping, and telecommunications –

538 Flight Safety Foundation (2017/10/10) “ICAO Lifts Thailand’s Safety ‘Red Flag’”; https://flightsafety.org/thailand-red-flag/ 539 O’Leary & Brown (2018) “The Legal Bases for IMO Climate Measures”; Sabin Center for Climate Change Law, Columbia Law School

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have significantly lower public perceptions about their respective levels of risk (540) than does nuclear energy (541), even though actual risks associated with commercial aviation (542), maritime shipping (543), and cyber threats (544) are significant.

An example of this would be the PRC’s approach to ITU governance activities, which can be described as “cyber sovereignty,” as opposed to the U.S. approach of “cyber freedom” (545). By exploiting the State’s control over its internal internet, and by being gate-keeper to the PRC’s citizens and corporations access to the global electronic marketplace, the PRC government attempts to control its citizenry, and mitigate possible

540 Fox-Glassman & Weber (2016) “What makes risk acceptable? Revisiting the 1978 psychological dimensions of perceptions of technological risks”; Journal of Mathematical Psychology, 75, 157-169 541 “Moreover, although trust matters, the kind of trust matters more. Our analysis showed that trust in regulation has more power to affect energy acceptance than trust in the government. In this vein, the government should consider implementing better designs for regulations.” Ryu, Kim, & Kim (2018) “Does trust matter? Analyzing the impact of trust on the perceived risk and acceptance of nuclear power energy”; Sustainability, 10(3), 758. 542 Flying 1,000 miles on a commercial jet represents a one-in-a-million chance of sudden death. Visual Capitalist (2018) “Crunching the Numbers on Mortality”; https://www.visualcapitalist.com/crunching-the-numbers-on-mortality/ 543 “Between 2002 and 2015, more than 200 deaths occurred that were related to marine incidents aboard cruise ships. About 1 in 250 cruise ship passengers will experience an illness requiring hospitalization.” TripPrep.com (2019) “Cruise Ship Travel”; https://tripprep.com/library/cruise-ship-travel/traveler- summary 544 “Cyber threats have already challenged public trust and confidence in global institutions, governance, and norms, while imposing costs on the global economy. These threats pose an increasing risk to public safety, as cyber technologies are integrated with critical infrastructure in key sectors. Adversaries also continue to use cyber operations to undermine U.S. military and commercial advantage by hacking into U.S. defense industry and commercial enterprises. The breadth of cyber threats posed to U.S. national and economic security has become increasingly diverse, sophisticated, and serious, leading to physical, security, economic, and psychological consequences.” Clapper, Lettre, Rogers (2017) “Joint Statement for the Record to the Senate Armed Services Committee Foreign Cyber Threats to the United States”; U.S. Congress 545 Shen (2016) “China and global internet governance: toward an alternative analytical framework”; Chinese Journal of Communication, 9(3), 304-324.

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impacts on the PRC government from externally-generated internet content and international telecommunications usage by its citizens.

However, since it is known that States like the PRC are not fully participating in the goals other ITU member States are seeking to obtain, appropriately cautious States and businesses interacting with these States need to recognize the added cyber-security challenge such interactions have.

A fourth and final lessons-learned from these cases is that if non-participating States enter into agreements with other non-participating States to develop and abide by competing – and potentially lower-quality – regulations and standards, the overall value of organizations like ICAO, IMO, and ITU could suffer in a potential “race to the bottom” (546). To date, even nominal compliance with ICAO, IMO, and ITU has such significant benefits that there are no examples of States taking this route, and this potential action helps to moderate any overreach by ICAO, IMO, or ITU.

I conclude from these four lessons learned that, in order to develop and successfully implement the proposed nuclear oversight IGO, there must be a significant economic incentive for its existence and for States to become members of, and actively participate in. At this time, such an incentive is not present for a nuclear oversight IGO.

546 de La Chapelle & Fehlinger (2016) “Jurisdiction on the internet: from legal arms race to transnational cooperation”; Centre for International Governance Innovation; https://www.cigionline.org/sites/default/files/gcig_no28_web.pdf

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5.1.1.2 IAEA and NEA Lessons Learned

Based on my examination of these organizations, including reviewing the associated literature and interviews conducted, I have one major conclusion: neither IAEA nor NEA can perform the functions of the proposed nuclear oversight IGO.

Specifically, neither IAEA nor NEA is organizationally or culturally constructed to develop regulatory regimes that member NNRAs could utilize, nor is either organization presently capable to provide in-depth critical reviews of NNRAs to provide clarity on the

NNRA’s strengths and weaknesses so that it can improve its oversight capability.

While the IAEA does perform reviews of NNRAs via its Integrated Regulatory

Review Service (IRRS) and International Physical Protection Advisory Service (IPPAS) missions, these reviews are actually performed by senior NNRA staff, with the IAEA staff coordinating facilitating these reviews. As exemplified by the IRRS mission to the then Japanese regulator prior to the Fukushima disaster, these IRRS reviews have not historically been as in-depth and critical as similar reviews performed by the Institute of

Nuclear Power Operations (INPO) on its member nuclear energy utilities. Further,

IPPAS reviews have generally been constrained to comparing the procedures and practices of the NNRA under review to the obligations contained in the Convention on the Physical Protection of Nuclear Material, usually without actually testing the security capabilities.

The NEA does act as a facilitator for its members to share information and cooperate on research into areas of common interest, but it doesn’t have the capability to develop regulatory regimes, nor has it historically provided significant assistance to non- members.

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5.1.1.3 NNRA Lessons Learned

Based on my examination of the several NNRAs listed in Chapter 3, including the informal interviews I conducted with my peers in these NNRAs, I found that every

NNRA wants to share information and learn from others, but there was a repeating concern, as discussed in Chapter 4, with any proposal that an NNRA should emulate more mature NNRAs, especially the USNRC, which was increasingly viewed as past its prime. However, there was a general interest in normalizing and harmonizing (547) nuclear regulatory regimes as a means to mitigate unnecessary regulatory burden and to facilitate greater transference of relevant experience and knowledge between NNRAs.

5.1.2 Second Question

Regarding empowering the proposed nuclear oversight IGO, there are several options, including non-binding agreements, such as the Multinational Design Evaluation Program

(MDEP) multinational initiative, and legally binding formal agreements, such as treaties

(e.g., the Nuclear Non-Proliferation Treaty, NPT) and conventions (e.g., the Convention on Nuclear Safety, CNS).

547 Regulatory normalization and harmonization typically involves adopting identical, or very similar, rules and standards in order to facilitate cross-border commerce. Bloomfield, Brüggemann, Christensen, & Leuz (2015) “The effect of regulatory harmonization on cross-border labor migration: evidence from the accounting profession”; National Bureau of Economic Research, w20888 Alqahtani, Seoane‐Vazquez, Rodriguez‐Monguio, & Eguale (2015) “Priority review drugs approved by the FDA and the EMA: time for international regulatory harmonization of pharmaceuticals?”; Pharmacoepidemiology and Drug Safety, 24(7), 709-715. Handford, Elliott, & Campbell (2015) “A review of the global pesticide legislation and the scale of challenge in reaching the global harmonization of food safety standards”; Integrated Environmental Assessment and Management, 11(4), 525-536.

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The obvious objection to non-binding agreements is that, by its very nature, there is no incentive for participating States to adhere to any proposed actions coming out of these initiatives.

Treaties and conventions are legal mechanisms that allow States, the UN specialized agencies, and the IAEA to enter into binding agreements with each other. However, in accordance with Section 2 of the 1969 Vienna Convention on the Law of Treaties

(VCLT (548)), acceding States can formulate reservations to certain provisions of the treaty, unless doing so is prohibited by the treaty. For instance, based on my review of the conventions that established ICAO, IMO, and ITU, as well as the legal authority of

IAEA, participating States can and do opt not to follow certain provisions promulgated by these organizations.

Therefore, if the proposed nuclear oversight IGO is ever empowered, I would recommend the use of a plurilateral treaty, as opposed to a multilateral treaty or convention. The primary advantages of this type of treaty, as codified by article 20(2) of the VCLT, is that it is entered into by a limited number of States with a specific interest in the treaty’s subject, reservations are not permitted without the consent of all other parties to the treaty, and the full cooperation of the parties to the treaty is required in order for the object of the treaty to be met (549). An example of a plurilateral treaty would

548 United Nations (1969) Vienna Convention on the Law of Treaties; 1155 U.N.T.S. 331 (in force 1980); https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf 549 Aust (2000) Modern Treaty Law and Practice; Cambridge: Cambridge University Press, p. 112.

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be the 1990 Treaty on the Final Settlement with Respect to Germany (Vertrag über die abschließende Regelung in Bezug auf Deutschland (550)),

A plurilateral treaty could allow the proposed nuclear oversight IGO to be empowered and resourced, providing it with a greater likelihood of success. However, it is recognized that, absent some incentives, such as linking the Nuclear Suppliers Group guidelines on exports, or placing transnational nuclear liability conventions (e.g., the

1997 Vienna Convention on Civil Liability for Nuclear Damage, the 1988 Joint Protocol

Relating to the Application of the Vienna Convention and the Paris Convention, the 1997

Convention on Supplementary Compensation for Nuclear Damage) under the purview of the proposed nuclear oversight IGO, it is unlikely that more mature NNRAs would accede to joining this IGO.

5.2 Conclusion

As discussed in Chapter 4 of this dissertation, the view shared virtually unanimously by every expert I interviewed was that my proposed nuclear oversight IGO, while desirable, is simply not feasible, mostly for political reasons.

Much like no State adopts every standard and practice developed by ICAO, IMO, or

ITU, there may be reasons – technical, financial, or political – for occasionally rejecting new standards or proposed by an outside authority. Much like the failure of the U.S.-led

Acheson-Lilienthal/Baruch proposals in the 1940’s for the creation of an Atomic

550 Also known as the Two Plus Four Agreement (Zwei-plus-Vier-Vertrag), the treaty was negotiated between the Federal Republic of Germany and the German Democratic Republic, and the Four Powers which occupied Germany at the end of World War II in Europe: France, the U.S.S.R., the U.K., and the U.S. The Four Powers renounced all rights they held in Germany, allowing a united Germany to become fully sovereign in 1991.

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Development Authority, which would have placed control of nuclear materials and technologies – and would have controlled the proliferation of nuclear weapons – into an organization outside the control of national governments, as well as the failure of subsequent similar proposals, I neglected to fully consider the political and economic ramifications such an organization would represent.

In almost all of the materials reviewed and in virtually all of the interviews conducted, the consensus was resounding. Even when I came across the rare author or interview that agreed with my proposal, such agreement was always in the category of

“ideal” and not real-world.

As such, I have reluctantly accepted that a global nuclear regulatory authority is not politically feasible at this time.

5.3 Recommendations

While I now recognize that an international nuclear oversight organization, as proposed, is not feasible at this time, I have determined that my research supports five near-term recommendations, and suggests three areas for further research. It is recognized that the following recommendations are piecemeal variations of my original proposal.

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5.3.1 Recommendation 1: Expand Regional Cooperative Nuclear

Regulatory Networks

Virtually every NNRA participates in one or more of the seven regional cooperative nuclear regulatory networks (RCNRNs (551)) and/or one of the four thematic cooperative nuclear regulatory networks. These individual networks could be strengthened in a manner similar to what I initially proposed for a singular international nuclear oversight organization, so as to provide a regional-, or technology-, focused NNRA support organization that could augment the capabilities and competencies of NNRAs within a region.

In order to demonstrate the practicality of this recommendation, I suggest that

WENRA and ENSREG jointly work with their member NNRAs to pilot an effort to harmonize and normalize the individual European nuclear regulatory regimes into a singular framework. While not every member NNRAs will immediately implement this new framework within their respective States, several of the more forward-leaning

NNRAs could, with the expectation that by adopting this standardized framework, there will be both a cost savings from not having to originate and maintain State-specific regulations and standards, and an increased ability to better share and utilize lessons- learned and best practices from other NNRAs that are using the same framework. After a

551 Regional networks include the Western European Nuclear Regulators Association (WENRA), the European Nuclear Safety Regulators Group (ENSREG), the Forum of Nuclear Regulatory Bodies in Africa (FNRBA), the Arab Network of Nuclear Regulators (ANNuR), the Asian Nuclear Safety Network (ANSN), the Ibero-American Forum of Radiological and Nuclear Regulatory Agencies (FORO), and the Forum for Nuclear Cooperation in Asia (FNCA). Thematic networks include the CANDU Senior Regulators Forum, the Framatome Regulators Association, the WWER Cooperation Forum, and the Multinational Design Evaluation Program.

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reasonable piloting period – I suggest five years – if there has been an overall improvement in nuclear safety, security, and safeguards oversight, then the several

NNRAs could consider whether it would be practical to consolidate into a singular

European nuclear regulatory authority for commercial oversight.

5.3.2 Recommendation 2: Develop an International Technical and

Scientific Support Organization

As discussed earlier in this dissertation, many of the NNRAs do not have the requisite resources and expertise to effectively implement their oversight responsibilities. As such, there is a demonstrated need for an international technical and scientific support organization (TSO) that could provide needed subject matter expertise to assist NNRAs in addressing the technical and scientific issues that arise in designing, constructing, operating, maintaining, and decommissioning nuclear power plants and facilities.

I recommend that universities with existing nuclear expertise develop a consortium to address this TSO need. This consortium, which I recommend be funded in part or in whole by States with significant nuclear energy programs, could support the training of

NNRA personnel to improve the NNRA’s internal technical capabilities, and could be a technical resource to support the resolution of emergent technical issues, as well as provide necessary research capabilities to address long-lead-time potential concerns, e.g., impacts of materials aging, news challenges that emerging nuclear energy technologies introduce.

While these university consortiums could be global in outreach, I recommend that, as in Recommendation 1, they initially have a regional focus, while sharing best practices and lessons-learned with each regional consortium. For instance, there are about 38

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universities in the U.S. with nuclear engineering programs, and these could form a consortium to support NNRAs in the Americas.

5.3.3 Recommendation 3: Create Permitting Requirements for Nuclear

Recognized Organizations

As described in Chapters 2 and 4, the International Maritime Organization allows the certification of “Recognized Organizations” to which can be delegated the authority to inspect and survey ships. As such, these “Recognized Organizations” function as an augmentation of the designated authority.

Similar to Recommendation 2, I recommend the development of permitting requirements that would support the creation of certified experts that could support

NNRAs in carrying out their oversight duties. Nuclear recognized organizations would be especially valuable for addressing emerging issues, as well as providing short-term support for activities that do not justify the growth of an NNRA’s permanent staff.

However, caution would be needed to be exercised to preclude the overuse of such temporary staff in lieu of NNRA personnel for what is an inherently governmental oversight function.

5.3.4 Recommendation 4: Increase Secondment Opportunities between

NNRAs

Before I left the USNRC for the USDOE, I served as International Team Lead. In this position, I was responsible for facilitating and managing the secondment of staff from various NNRAs to the USNRC for one- to three-year assignments with a focus on regulating NPPs. This program, known as the Foreign Assignee Program, is intended to

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transfer USNRC expertise in selected regulatory areas, with the assignee acquiring an understanding of the USNRC’s regulatory processes and the technical bases for the regulatory requirements.

I recommend that this program be expanded, both by the USNRC and other mature

NNRAs, to support the dissemination of best practices and lessons learned to less- resourced NNRAs. This would be especially valuable in concert with Recommendation

1.

While the USNRC’s Foreign Assignee program is expensive to conduct – the supplying NNRA is required to pay salary, housing, and per diem expenses for their seconded staff, while the USNRC incurs the expense of training someone that is recognized to be temporary – the benefits to the supplying NNRA is worth it. Further, in the 30 years this program has been in place, virtually every assignee alum has risen into senior management positions in their home NNRA (or other governmental post or within the national nuclear industry), which has provided the USNRC with relationships that have helped the USNRC better understand nuclear issues in the assignee’s home State.

5.3.5 Recommendation 5: Reorganize IAEA to Separate Promotional

Activities from Regulatory and NPT Duties

The IAEA is primarily a promotional organization. While it is not a regulatory body, it does support NNRAs on improving their oversight of commercial nuclear technologies, as well as having oversight responsibilities through the Nuclear Nonproliferation Treaty

(NPT).

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I recommend that the IAEA be split into at least two, and preferably three organizations. The first, which could retain the IAEA name, would continue to promote the use of nuclear materials and technologies for beneficial purposes.

The second daughter organization would encompass the existing IAEA Department of Nuclear Energy, and the Department of Nuclear Safety and Security. These two departments are responsible for supporting NNRAs in the areas of safety and security.

This new organization could be the nucleus of the proposed nuclear oversight IGO, but would require significant additional resources and legal authorities to become such.

The third – or other half if only split into two organizations – would be the existing

Department of Safeguards, which is presently charged with carrying out the IAEA’s duties and responsibilities under the NPT to support global efforts to stop the spread of nuclear weapons. I recommend that this new autonomous organization report directly to the UN Security Council. Doing so would require an amendment to the NPT, but would make the division between promotion and nonproliferation more clearly delineated, and is in keeping with the trend of NNRAs that have reorganized in the recent past.

5.4 Areas for Further Research

Based on my study, there are three areas that could benefit from additional research.

5.4.1 Area 1: Research into Developing a Consistent Legal Model to

Authorize NNRAs

As discussed in Chapter 1, every State has created its NNRA utilizing enabling legal language that may or may not provide the NNRA with authorities similar to other

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NNRAs. Further, too many States place their NNRA within a ministry that is charged with promoting nuclear energy.

I recommend additional research be conducted into the development of one, or several, legal models that would encourage consistency in the authorities that NNRAs are granted to oversee and regulate the uses of nuclear science, technologies, and materials within their State. There may be a need for more than one model, in recognition that there is a wide range in the capabilities and perspectives these NNRAs have that need to be considered. The need for more than one model is illustrated by the reorganization of

Japan’s NISA, which was formally considered to be a mature and capable NNRA, into the JNRA, and the adjustment period it has gone through to become comfortable with its new legal authorities. Additional models may be needed for NNRAs that are less capable, and might even include a tiered approach to support NNRAs becoming more capable.

5.4.2 Area 2: Research into How to Develop a Technology-Neutral/-

Appropriate Regulatory Framework

As discussed in Chapter 4, the USNRC has been researching the development of a technology-neutral/technology-appropriate regulatory framework for almost 20 years, but has yet to develop a successful model. If the global nuclear industry is to move forward into the fourth generation of reactors, there is a recognition that technologies other than light-water reactors will become more prevalent, especially as the need for process heat for desalination and industrial processes pushes the development of liquid-metal and gas- cooled reactors. Requiring NNRAs to use multiple regulatory frameworks to oversee and

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regulate differing kinds of reactors in their jurisdiction will make the challenges faced by under-funded and/or under-staffed NNRAs that much more acute.

I recommend additional research be undertaken into the development of a technology-neutral and technology-appropriate regulatory framework, with a focus on ensuring safe and secure operations based on both actual risks and the public’s perception of risk, as opposed to strict compliance to performance standards that may not consider evolving conditions over the life of the facility.

5.4.3 Area 3: Research in Updating the Convention on Nuclear Safety

The 1994 treaty governing safety at nuclear power plants, the Convention on Nuclear

Safety, was created to impose obligations on signatory States that utilize nuclear energy, including consideration on site selection, design and construction requirements, verification of safe operation, and emergency preparedness requirements. However, there is one major loophole in the language, since the CNS only applies to land-based

NPPs. Since both the Russian Federation and the PRC are actively engaged in developing floating NPPs, both for domestic use and for export, this gap may challenge the future safe operations of these floating NPP facilities.

I recommend additional research be undertaken to develop language that could be used to amend the CNS that addresses not only floating NPPs, but uses of future NPPs, especially those that use non-light-water technologies and those that could be used for industrial processes in addition to, or in lieu of electricity generation, so as to focus on the safe development and use of nuclear technologies and materials.

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