Nuclear Deal: Questions arise on reprocessing restrictions

Spent fuel treatment will require separate U.S. consent. And Congress will not waive Section 129 of the U.S. Atomic Energy Act, as the Bush administration had promised India in March.

28 July 2006
The Hindu

Questions arise on reprocessing restrictions

Siddharth Varadarajan

EVEN AS the U.S. House of Representatives on Wednesday night passed a bill authorising nuclear exports to India under a specific set of conditions, fresh doubts have surfaced about the extent to which the Bush administration intends to fulfil its side of the bargain struck with Prime Minister Manmohan Singh last July.

Under the U.S. Atomic Energy Act of 1954, Sections 128 and 129 prohibit nuclear sales to countries that fall foul of a number of conditions. These include agreeing to place all nuclear facilities under international safeguards [128], not testing a nuclear weapon [129 (a)(1)(A)], not abrogating or violating IAEA safeguards [129(a)(1)(B) and (C)], not possessing nuclear weapons [129(a)(1)(D)], and not exporting reprocessing equipment and technology to a non-nuclear weapons state except as part of an international programme which the U.S. is a part of or approves of [129(a)(2)(C)].

The original draft Bill seeking to amend the AEA to allow nuclear sales to India — shared with New Delhi in March and submitted to Congress — envisaged the waiving of Sections 128 and 129 in their entirety. But in the version passed by the House on Wednesday and due to be passed by the Senate, the exemptions have been limited only to Section 128 and to the single clause of Section 129 which prohibits a recipient state from engaging in a nuclear weapons programme. Tests prior to July 18, 2005, are exempted but not subsequent ones.

According to senior Indian officials familiar with the proposed law, Washington is seeking to impose on the Indian civil nuclear industry a restriction on participating in any multinational fuel cycle initiative in which the U.S. is not a part or even from meaningfully collaborating with non-nuclear weapons states that have already mastered the fuel cycle.

Officials say the July 2005 agreement only committed India to refrain from "transfer of enrichment and reprocessing technologies to states that do not have them and supporting international efforts to limit their spread." There are several non-nuclear weapons states that currently possess these technologies, including Japan and Brazil. If tomorrow, India decides to collaborate with Brazil on reprocessing or enrichment, either by itself or through an international initiative to which the U.S. does not belong, it is likely to fall foul of Section 129(a)(2)(C). This means a future American administration can end nuclear cooperation with India. Officials say that with the Senate Bill explicitly prohibiting U.S. exports of reprocessing technology to India — a far cry from the original commitment of "full" civil nuclear cooperation — an attempt is being made to squeeze the Indian involvement in fuel cycle technologies from both ends.

"The U.S. is pushing its own Global Nuclear Energy Partnership (GNEP) but there are several other international fuel cycle proposals pending before the IAEA. By limiting the waiver of Section 129 in this way, there will be pressure on us to look at GNEP as the only alternative," an official told The Hindu.

Senior officials are also concerned that the envisaged legislation contains no provision for the reprocessing by India of spent fuel produced by imported reactors or fuel.

Section 123 of the U.S. AEA prohibits an importing country from reprocessing spent fuel without the prior consent of the U.S. "Our understanding was that India would be exempted from this section too," said an official. "Use of spent fuel is integral to the Indian nuclear programme and all our plans are based on this rather than storage or disposal, except for the high level nuclear waste left after reprocessing", he added. India, he said, would have to apply for U.S. consent each time, consent which may either not be forthcoming or be revoked in the future. "The spent fuel storage tanks at Tarapur are living proof of this problem," the official said, with the U.S. neither agreeing to cart the waste away nor allowing India to reprocess it.

Officials say "full" civil nuclear cooperation without India having the right to reprocess spent fuel is meaningless. "So far, the Administration has told us, `Look, its Congress which is tampering with the exemptions.' But the original draft of the Bill drawn up by the White House itself chose not to amend the Section 123 requirement of case-by-case consent to reprocessing," an official said.

During the question-and-answer session following a lecture on the nuclear deal on July 14, Foreign Secretary Shyam Saran said India would be free to reprocess the spent fuel produced from safeguarded reactors.

Since the White House is not keen to permit this through legislation, the only other route would have to be include this consent in the nuclear cooperation agreement (the `123 agreement') currently under negotiation. But that agreement, too, will have to pass the Congressional gauntlet.