March 27, 2002
 
 
VIA FACSIMILE (202) 586-4403 AND MAIL
 
 
Hon. Spencer Abraham
Secretary of Energy
U.S. Department of Energy
James Forrestal Building
1000 Independence Avenue, S.W.
Washington, D.C. 20585
 
 
Required Linkage in U.S.-Russian Plutonium Disposition Program
 
Dear Secretary Abraham:
In a hearing on March 6 before the House Energy and Water Development Appropriations Subcommittee, you stated that the U.S. surplus plutonium disposition program shouldnt be further paused pending the financing of the Russian program. This statement suggests that the U.S. program need not proceed in parallel with the Russian program and that the Department of Energy (DOE or the Department) might move forward with plutonium disposition, notwithstanding the absence of progress on the Russian side. On behalf of the Nuclear Control Institute (NCI), we are writing to urge the Department to clarify its position and reaffirm its commitment to maintaining parity between the two programs.

At the March 6 hearing, Congressman Clyburn (D.-S.C.) asked if progress on the program to dispose of surplus warhead plutonium through conversion to mixed oxide (MOX) fuel and use in conventional power reactors depended on the Russians. Your response, quoted above, suggested that the United States had an independent obligation under the U.S.-Russia plutonium disposition agreement (U.S.-Russia Agreement Concerning the Management and Disposition of Plutonium Designated as No Longer Needed for Defense Purposes and Additional Cooperation, entered into September 2000 [the Agreement]) to move forward promptly with the MOX program, even if the Russian program was delayed.

NCI understands that a senior aide at DOE subsequently clarified that the goal is to keep [the U.S. and Russian] programs very much in parallel. See D. Horner, DOE Scraps WIPP Plan for Impure Pu, Now Mulling Making MOX From It, NuclearFuel, March 18, 2002, pp. 3, 5. However, DOEs plutonium disposition program report, recently submitted to Congress pursuant to the FY 2002 National Defense Authorization Act, sets out an ambitious schedule for construction of MOX facilities that is difficult to square with the notion that the U.S. and Russian programs will remain truly linked. See DOE, Report to Congress: Disposition of Surplus Defense Plutonium at the Savannah River Site (February 15, 2002). The same is true of the schedule proposed by Duke Cogema Stone & Webster for consideration by the Nuclear Regulatory Commission (the NRC) in developing the NRCs planning basis for environmental and other regulatory reviews that would permit the start of construction of the MOX fabrication plant as early as October 1, 2003. See NRC, Response to the Duke Cogema Stone & Webster Proposed Basis Following Changes to the Surplus Plutonium Disposition Program (March 12, 2002).
Because of the importance of a truly bilateral plutonium disposition program to U.S. national security and non-proliferation policy, NCI believes that a clear statement from you is necessary to set the record straight. In particular, the Department must make it plain that it will not make a major commitment to the construction and operation of a MOX fabrication facility, unless and until it is evident that the Russians are likewise taking expeditious action pursuant the Agreement to dispose of their surplus weapons plutonium.

NCI strongly supports the safe, secure and cost-effective disposition of surplus warhead plutonium as quickly as possible. Given the bilateral nature of our accord with the Russians and the clearly articulated policy of Congress that the U.S. and Russian programs should proceed in tandem, NCI believes it would be inappropriate for the Department to commit tens of millions of dollars prematurely to the MOX option, especially when it may turn out that other options, such as immobilization, are more cost effective, less risky and more likely to win Russian acceptance if the MOX option proves financially infeasible and too heavy a safety and security burden, as we believe should soon become evident.

The U.S. and Russian programs to dispose of surplus weapons plutonium are integrally related under the terms of the Agreement. Indeed, from the very beginning, the premise of the programs was that they generally should proceed in parallel. B. MacDonald and N. Yegorov, Co-Chairs, Joint United States/Russian Plutonium Disposition Study, Executive Summary at 2 (September 1996). In addition, it has long been specifically understood that disposition through burning MOX in conventional power reactors was a so-called coupled option, in which both programs would move in rough parallel. DOE, National Nuclear Security Administration, Fact Sheet (January 23, 2002).

The Agreement plainly contemplates that progress in the two plutonium disposition programs should be linked. Thus, the Preamble affirms the intention of each party to proceed by stages to remove plutonium from its weapons program. Article II, para. 4, expressly refers to the obligations of each party to dispose of 34 metric tons of weapons plutonium as being reciprocal. Even more to the point, Article II, para. 3, specifically provides, The Parties shall cooperate in the management and disposition of disposition plutonium, implementing their respective disposition programs in parallel to the extent practicable (emphasis added). Article IV contemplates that both parties will take all reasonable steps to achieve the same disposition rate of two metric tons per year, commencing no later than December 31, 2007, and that they will notify each other of their progress in reaching milestones specified in the Annex on Schedules and Milestones. Article V provides that the parties will undertake to develop a detailed action plan . . . to at least double the disposition rate . . . at the earliest practicable date. Finally, Article IX and the Annex on Schedules and Milestones establishes a direct correspondence between progress in the two programs.
Clearly, the terms of the Agreement leave no doubt that linkage and parallelism are intended to apply to the U.S. and Russian disposition programs.
 
At the same time, Congress has been steadfast and consistent in promoting parallelism between the U.S. and Russian plutonium disposition programs and in emphasizing that the United States program should not get far in front of the Russians. The strongest statement of this policy came in connection with Congressional consideration of FY 1999 appropriations for the Department. The Senate Report stressed at that time,
 
While some efforts have been made to link the United States program to progress on plutonium disposition in Russia, those linkages are not sufficient. * * * At a minimum, the two countries disposition programs should be conducted under a bilateral accord that sets specific schedules for materials disposition in both countries and Russian material must be converted to nonweapons forms at no less than the rate of United States material--anything else would amount to an unequal and irresponsible disarmament. * * * The Committee has two interests in this matter: to show support for the Department's decision to endorse the eventual use of mixed-oxide fuel for the disposition of excess weapons plutonium, and also ensure that the United States does not unwisely proceed with a program that does not ensure that an equal amount of plutonium will be converted to nonweapons forms by the Russian Federation. For that reason, the Committee has provided the full amount of the request, but has also included a statutory proviso that funds for the design, licensing, or construction of a mixed-oxide fuel fabrication facility in the United States, shall be available only after the United States and the Russian Federation agree on a bilateral schedule for the conversion to nonweapons forms of excess weapons plutonium in accordance with which the conversion rate in the United States does not exceed the conversion rate in the Russian Federation.
 
S. Rep. No. 206, 105th Cong., 2d Sess. 118-119 (June 5, 1998) (emphasis added). See S. 2138, 144 Cong. Rec. S. 6541, 6545 (daily ed., June 18, 1998).
 
The House expressed sentiments similar to those of the Senate. Thus, the House Report on the appropriations bill stated,
 
The Committee supports the Administration's efforts to reach agreement with the Russian Federation on a bilateral program for the conversion and disposition of weapons derived plutonium. The Department of Energy should proceed with preparations for plutonium disposition to include the design and licensing of key disposition facilities as well as qualification of MOX fuel in order to send a signal to Russia of the seriousness with which the U.S. views the disposition of stockpiles of excess weapons plutonium. The United States, however, should not proceed
unilaterally to dispose of excess plutonium without parallel progress on the Russian side. Further, the Committee does not intend to authorize the expenditure of funds for the actual construction of these facilities without such an agreement.
 
H.R. Rep. No. 581, 105th Cong., 2d Sess. 116 (June 16, 1998) (emphasis added).
 
Finally, the Conference Report on the FY 1999 appropriations bill stated,
 
The conferees have deleted bill language proposed by the Senate which limited the design and procurement activities for the mixed oxide fuel fabrication facility. The Department of Energy should proceed with preparations for plutonium disposition to include the design and licensing of key disposition facilities as well as qualification of mixed oxide fuel. The United States, however, should not proceed unilaterally to dispose of excess plutonium without parallel progress on the Russian side. No funds have been provided to initiate actual construction of plutonium disposition facilities without such an agreement.
 
H. Conf. Rep. No. 749, 105th Cong., 2d Sess. 110 (September 25, 1998) (emphasis added).
 
In the years since 1998, no Congress has expressed a different view. Indeed, the Congressional sentiments expressed in 1998 have been reaffirmed as recently as the 2001 appropriations cycle. For example, the House Report on the Departments FY 2001 appropriations bill stated the House Appropriations Committees concerns that the U.S.
program is being conducted at a faster pace than the Russian program, noting that [t]he design of several expensive new facilities in the United States is underway while funding for comparable Russian facilities is still uncertain, and calling upon the Department to explain in a report to Congress the process by which parity between the two countries will be maintained throughout execution of the program. H. R. Rep. No. 693, 106th Cong., 2d Sess. 109 (June 23, 2000).
 
In short, given the terms of the Agreement and expressions of Congressional intent, maintenance of parity between the Russian and American plutonium disposition programs is essential. Proceeding to actual construction of a MOX fabrication facility without Russia being at the same point will represent a move toward unilateral and premature disposition through MOX on the U.S. side and is unacceptable. The Department should leave no doubt on the public record that it will proceed deliberately and on a pace that mirrors that of the Russians.
 
We ask, therefore, that you provide us with a clear statement reaffirming that the intent of Congress and the terms of the Agreement calling for linkage and parallelism between the U.S. and Russian plutonium disposition programs will be honored and that licensing and construction of a MOX fabrication plant in the United States will not proceed prematurely.
                                    
  Thank you for your consideration of our views. We look forward to a prompt response.
 
Sincerely,
 
 
Paul L. Leventhal Eldon V.C. Greenberg
President Garvey, Schubert and Barer
Counsel to NCI
 
CCs:

Senator Robert C. Byrd, Chair, Committee on Appropriations
Senator Ted Stevens, Ranking Member, Committee on Appropriations
Senator Harry Reid, Chairman, Subcommittee on Energy and Water
Development, Subcommittee on Transportation, Infrastructure,   and Nuclear Safety
Senator Pete V. Domenici, Ranking Member, Subcommittee on Energy
and Water Development
Senator Carl Levin, Chairman, Committee on Armed Services
Senator John Warner, Ranking Member, Committee on Armed Services
Senator Jack Reed, Chairman, Subcommittee on Strategic Forces
Senator Wayne Allard, Ranking Member, Subcommittee on Strategic Forces
Senator James M. Jeffords, Chairman, Committee on Environment and
Public Works
Senator Bob Smith, Ranking Member, Committee on Environment and
Public Works
Senator James M. Inhofe, Ranking Member, Subcommittee on
Transportation, Infrastructure, and Nuclear Safety
Senator Joseph R. Biden, Chairman, Committee on Foreign Relations
Senator Jesse Helms, Ranking Member, Committee on Foreign
Relations
Senator Daniel Akaka, Chairman, Subcommittee on International
Security, Proliferation and Federal Services
Senator Thad Cochran, Ranking Member, Subcommittee on
International Security, Proliferation and Federal Services

Rep. C.W. Bill Young, Chairman, Committee on Appropriations
Rep. R. Obey, Ranking Member, Committee on Appropriations
Rep. Sonny Callahan, Chairman, Subcommittee on Energy and Water
Development
Rep. Peter J. Visclosky, Ranking Member, Subcommittee on Energy
and Water Development
Rep. Bob Stump, Chairman, Committee on Armed Services
Rep. Ike Skelton, Ranking Member, Committee on Armed Services
Rep. Mac Thornberry, Chairman, Special Oversight Panel on DOE
Reorganization
Rep. Ellen Tauscher, Ranking Member, Special Oversight Panel on
DOE Reorganization
Rep. John M. Spratt, Committee on Armed Services
Rep. Billy Tauzin, Chairman, Committee on Energy and Commerce
Rep. John D. Dingell, Ranking Member, Committee on Energy and
Commerce
Rep. Joe Barton, Chairman, Subcommittee on Energy and Air Quality
Rep. Rick Boucher, Ranking Member, Subcommittee on Energy and Air
Quality
Rep. Edward J. Markey, Subcommittee on Energy and Air Quality,
House Bipartisan Task Force on Nonproliferation
Rep. Christoper Cox, Subcommittee on Energy and Air Quality
Rep. Henry J. Hyde, Chairman, Committee on International Relations
Rep. Tom Lantos, Ranking Member, Committee on International
Relations
Rep. Benjamin A. Gilman, House Committee on International Relations
Rep. Christopher Shays, House Bipartisan Task Force on
Nonproliferation