Using Bilateral Mechanisms to Strengthen Physical Protection Worldwide
Dr. Edwin Lyman, a Senior Scientist in the UCS Global Security Program, prepared the following paper for a meeting of the Institute of Nuclear Materials Management in 2004.
Abstract
The international community is reacting far too slowly in upgrading pre-9/11 physical protection standards to cope with post-9/11 threats. Almost three years after the attacks, the effort to amend the International Convention on Physical Protection is proceeding at a glacial pace, and even if ultimately successful, the amended Convention will lack mandatory standards and international enforcement provisions. It is also unlikely that the IAEA's physical protection guidance document, INFCIRC/225/Rev. 4, issued in June 1999, will soon be revised to take into account the far greater threat of nuclear terrorism known to exist today. The United States physical protection system, although far from ideal, is among the most rigorous in the world. NRC and DOE requirements for Category I physical protection are considerably more stringent than the measures contained in INFCIRC/225/Rev. 4. For example, NRC requires that Category I licensees deploy tactical response teams to protect special nuclear material from theft, and test the teams' skills and protective strategies through periodic force-on-force exercises. In contrast, INFCIRC/225/Rev. 4 neither mandates that Category I facilities deploy armed responders to defeat external assaults, nor requires full-scale performance testing to demonstrate that the facilities can be protected against credible threats. After 9/11, both NRC and DOE upgraded physical protection requirements, including more challenging design basis threats, more restrictive access controls, more robust protective force responses, increased levels of performance testing and more rigorous qualification and training of armed responders. Thus the gulf between U.S. standards and INFCIRC/225/Rev. 4 has grown even wider since the Al Qaeda attacks. The United States should seek to ensure that a high standard of nuclear material protection is applied uniformly throughout the world. However, United States bilateral nuclear cooperation agreements require only adherence to the most recent (yet now obsolete) revision of INFCIRC/225. This paper will explore mechanisms that the United States could use to bypass the paralysis of the international community and enforce physical protection standards for U.S.-obligated materials and facilities worldwide appropriate for the post-9/11 era.
Introduction
Nearly three years after 9/11, the international community has failed to act to stem the growing threat of nuclear terrorism by mandating a proportionate increase in the level of physical protection of weapon-usable materials worldwide. Six years after the United States proposed a revision of the Convention on Physical Protection to address domestic practices, such a revision has still not taken place. However, even if the revision is eventually achieved, the consensus document will lack mandatory physical protection standards, and any international verification or enforcement mechanisms. And even if mandatory physical protection standards were included in the revised Convention, they would likely be inadequate to address post-9/11 threats, since the international standard of merit remains INFCIRC/225/Rev. 4, which was issued in June 1999, and no post-9/11 revision is forthcoming.
Even before 9/11, United States domestic physical protection standards for Category I SSNM far exceeded the minimum standards specified in INFCIRC/225/Rev. 4. In addition, the United States has taken steps in the aftermath of the 9/11 attacks to strengthen the security of some Category I strategic special nuclear material (SSNM). Thus the gap between U.S. domestic measures and international standards for protection of Category I SSNM (5 kg or more of HEU or 2 kg or more of plutonium) is already wide and continues to grow.
This situation poses a dilemma with regard to the security of U.S.-origin and U.S.-obligated materials throughout the world. It makes little sense for the United States to enforce one security standard for SSNM within its borders, yet to acquiesce in weaker standards for U.S.-origin SSNM stored in other countries. Yet there is no indication that international standards will be raised to a level comparable to U.S. domestic standards in the foreseeable future. Consequently, the United States should pursue other approaches to ensure the security of U.S.-origin SSNM in the post-9/11 world.
Physical Protection Standards in the United States
Physical protection requirements can be grouped in three broad categories. The first consists of compliance-based criteria, or prescriptive measures such as detailed specifications of intrusion detection systems, vault characteristics and protective force numbers, equipment and training. The second consists of performance-based criteria, such as a requirement that a design basis threat (DBT) be defined and that the security at nuclear facilities be capable of defending against that threat. The third category consists of performance testing requirements; e.g. means of demonstrating that performance-based criteria are met. Performance testing is an essential component of a robust physical protection program; such testing at U.S. facilities has demonstrated that simple adherence to compliance-based criteria does not guarantee adequate protection against design basis threats.
For protection of Category I SSNM, both the Department of Energy (DOE) and the Nuclear Regulatory Commission (NRC) generally require dedicated armed response forces that must protect against a DBT specifically developed for theft scenarios, including both external and internal threats. The requirements include periodic force-on-force testing to assess the ability of the protective forces to defend against the DBT. To address the insider threat, full-field background investigations for employees who have unescorted access to SSNM areas are conducted.
After the 9/11 attacks, both DOE and NRC took action to upgrade security at nuclear facilities, including facilities possessing Category I quantities of SSNM. In 2003, both DOE and NRC issued revised and more challenging DBTs to address the more severe threat against U.S. critical infrastructure that was demonstrated by the al Qaeda attacks, and also upgraded compliance-based criteria such as guard force training requirements.
The recommendations in INFCIRC/225/Rev. 4 are considerably weaker than U.S. domestic physical protection standards.[1] For instance, INFCIRC/225/Rev. 4 does not recommend establishing a regulatory requirement that security personnel be armed, even for those guarding the storage and shipment of Category I SSNM. Although it does call for each State to develop and continuously review a DBT, it does not describe a minimum threat for all states to adopt as a common security baseline, and it does not recommend that force-on-force performance testing be required to demonstrate the capability to defend against the DBT. Finally, the only standard set by INFCIRC/225/Rev. 4 for background investigations for personnel seeking unescorted access to SSNM is that their "trustworthiness" be established; this requirement could be fulfilled by simply verifying that employees do not lie on their application forms and have no criminal records, and would not involve a full-field background investigation. A post-9/11 revision of INFCIRC/225 would be expected to enhance these and other compliance-based requirements.
United States Controls on SSNM Exports
Since the initiation of the Atoms for Peace program in the 1950s, the United States has exported SSNM around the world, including about 20 MT of HEU and about 750 kg of plutonium. These exports have taken place in accordance with bilateral "agreements for cooperation," as mandated by the Atomic Energy Act (AEA) of 1954. While agreements for cooperation set the preconditions for transfers of nuclear materials and technology, their provisions are implemented for individual exports through the issuance of export licenses.
In the case of countries for which no agreement for cooperation exists with the United States, such as Russia, nuclear cooperation can still take place under the auspices of stand-alone agreements, such as the 2000 U.S.-Russian Plutonium Management and Disposition Agreement (PMDA).
While agreements for cooperation negotiated under the AEA contained peaceful-use and safeguards commitments, they did not contain provisions related to the physical protection of U.S.-origin SSNM abroad until the passage of the Nuclear Non-Proliferation Act of 1978 (NNPA).[2] The NNPA states that "adequate physical security measures will be maintained with respect to such material or facilities proposed to be exported and to any special nuclear material through the use thereof." Consequently, agreements for cooperation negotiated (or renegotiated) subsequent to the passage of the NNPA, such as the 1987 US-Japan Agreement and the 1996 U.S.-EURATOM Agreement, contain provisions committing the recipient countries to implement "adequate measures of physical protection" for nuclear materials within the scope of the agreements.
The standard of merit for adequacy of physical protection in these post-1978 agreements for cooperation, as well as other agreements such as the PMDA, typically has been a reference to the IAEA recommendations for physical protection, INFCIRC/225, "as it may be revised and accepted by the Parties." This standard is implemented by the NRC through in its regulations on the issuance of export licenses, 10 CFR §110.44:
(a) Physical security measures in recipient countries must provide protection at least comparable to the recommendations in the current version of … INFCIRC/225/Rev. 4 (corrected), June 1999
(b) Commission determinations on the adequacy of physical security measures are based on—
(1) Receipt of written assurances from recipient countries that physical security measures providing protection at least comparable to the recommendations set forth in INFCIRC/225/Rev. 4
(2) Information obtained through country visits, information exchanges, or other sources. Determinations are made on a country-wide basis and are subject to continuing review.
In addition, all exports must conform to the overarching statutory requirement of the AEA in 10 CFR §110.42:
(a)(8) Proposed export must not be inimical to the common defense and security.
As discussed earlier, U.S. domestic physical protection regulations exceeded INFCIRC/225/Rev. 4 recommendations before 9/11 and have continued to evolve after 9/11, whereas INFCIRC/225/Rev. 4 has remained frozen in place. Thus the equivalence in U.S. export control regulations of "adequate physical protection" with conformance to INFCIRC/225/Rev. 4 is resulting in a growing gap between the level of protection governing the storage and transport of SSNM within the United States and that governing U.S.-origin or U.S.-obligated nuclear materials abroad.
Moreover, the regulatory standard for verification of compliance with INFCIRC/225/Rev.4—namely, written assurances plus "country visits, information exchanges, or other sources)—appears to be increasingly inadequate, in light of the limited scope of such measures and their reliance on the recipient's own assurances. These "country visits" are not facility-specific, comprehensive inspections, but merely generic assessments carried out by the interagency Bilateral Physical Protection Program. In the past, U.S. teams were sometimes not allowed to visit the actual facilities where the materials in question were to be stored, but were shown other facilities instead. Moreover, some countries are not revisited for four to five years. DOE states that over 140 visits have been conducted since the program started in 1974; this averages four to five visits per year, which is only a fraction of the more than 40 countries possessing U.S.-origin nuclear materials.
The Bilateral Physical Protection Program is nonintrusive in order to respect for the sovereignty of host countries and their national physical protection systems. However, in a post-9/11 world, the interest of the United States in ensuring that U.S.-origin or U.S.-obligated SSNM is secure wherever it is stored or transported must take precedence over the sovereign rights of other nations. These countries do not have a sovereign right to possess U.S.-origin nuclear materials, and they either should be prepared to implement any conditions that the United States deems necessary for the protection of such materials or forego their claim to them.
The need for greater security for US SSNM abroad is apparent in light of concerns about the magnitude of the terrorist threat outside of the borders of the United States. DOE officials have told the GAO that one of the reasons why the DOE DBT for domestic facilities is less severe than the most recent Postulated Threat developed by the intelligence community in 2003 is that the Postulated Threat includes an assessment of threats outside of the United States, where terrorist groups may enjoy an expanded range of capabilities compared to those operating within the United States.[3]
Current Status of United States SSNM Exports
Despite calls by the Bush Administration and the United Nations Security Council for all nations to strengthen controls over exports of nuclear materials and technologies, the United States continues to export substantial quantities of SSNM to countries without a demonstrated level of physical protection comparable to that of the United States.
Canada: Over the last several years DOE has exported an estimated 100 kg of HEU from the Y-12 plant at Oak Ridge, Tennessee to the Canadian company MDS Nordion for use as targets for the production of medical isotopes at the MAPLE reactors in Chalk River, Ontario. Because of technical problems that have prevented the MAPLE reactors from operating, this HEU inventory, which represents several years' worth of production at MAPLE, has accumulated in storage at Chalk River Laboratories (CRL).
Prior to September 11, physical protection requirements for Category I facilities in Canada, such as CRL, were very general.[4] After September 11, the Canadian Nuclear Safety Commission (CNSC) issued orders upgrading security, including a requirement that immediate on-site armed response be provided. The CNSC also undertook a revision of the physical protection regulations, which was issued in draft form in 2003 (and still has not taken effect).[5] The CNSC stated that one of the benefits of the proposed amended regulations was to "enhance Canadian nuclear security requirements to meet … international standards as set out in … IAEA document INFCIRC/225/Rev. 4 (Corrected)."[6] The implication of this statement is that the pre-9/11 regulations did not meet the standards of INFCIRC/225/Rev. 4, even though they were published in June 2000, a year after INFCIRC/225/Rev. 4 was issued. This raises questions whether US exports of HEU to Canada were in compliance with the requirements of 10 CFR §110.44 in the months before 9/11.
The CNSC's post-9/11 amendments to the Canadian nuclear security regulations actually appear to go beyond INFCIRC/225/Rev. 4 in some respects, such as their requirement for a permanent, on-site armed response force at Category I facilities. However, the measures are still not equivalent to United States national standards. For instance, while the amendments mandate that biennial security exercises be conducted, they fall short of requiring that these exercises be full-scale force-on-force exercises to test the capability of the response force to protect against the DBT.
France: DOE is planning to export 140 kg of weapon-grade plutonium from dismantled nuclear weapons to France for fabrication into mixed-oxide (MOX) lead test assemblies (LTAs). The LTAs will then be shipped back to the United States for irradiation at Duke Energy's Catawba nuclear plant in South Carolina as part of the U.S. program to dispose of 34 MT of excess weapons plutonium.
There are reasons to be skeptical of the adequacy of physical protection that is applied by France to the shipment and storage of Category I materials. Before 9/11, the responsibility for physical protection of nuclear facilities in France lay predominantly with plant operators, with minimal oversight by national regulatory bodies.[7] The French security requirements were also "performance-based" as opposed to "compliance-based," yet the extent to which compliance with performance-based rules was demonstrated through performance testing is unclear.
After 9/11, France undertook a review of its physical protection regulations and made some improvements, including a revision of the DBT for malevolent acts or sabotage against nuclear facilities. However, one publicly available source seems to suggest that the DBT for theft of Category I materials was not similarly upgraded.[8]
Concerns about the post-9/11 security of plutonium in France's domestic program were raised when Greenpeace France demonstrated in 2003 that it had the ability to conduct extensive long-term surveillance of the trucks used to transport plutonium oxide from the La Hague reprocessing plant in Normandy to the MOX fuel fabrication facilities in Cadarache and Marcoule. After repeated videotaping of the plutonium trucks and recording their license plates, in February 2003 Greenpeace activists intercepted a truck carrying 150 kg of plutonium and chained themselves to it. Even though this took place within meters of a French military base, it took over two hours before off-site responders from the armed forces arrived and arrested the activists.
In November 2003, Greenpeace International and two other environmental groups sought a hearing on DOE's application for an NRC license to export the 140 kg of weapons-grade plutonium to France. The intervenors argued that the export would be "inimical to the common defense and security" because the current standard in 10 CFR §110.44, adherence to INFCIRC/225/Rev. 4, was obsolete in the post-9/11 era. A declaration supporting the hearing request noted that a top State Department official stated publicly that he favored development of a fifth revision of INFCIRC/225, particularly in the area of transportation security, and hoped to pursue his proposal in mid-2004.[9] NRC rejected the hearing request in June 2004, alluding to information in classified briefings received by the NRC staff on French physical security measures. But although the French may have augmented their normal security procedures for this shipment, there is no evidence that that they have implemented measures comparable to the standards that DOE uses to protect the same material within the United States, including force-on-force testing. In fact, one might regard the 2003 Greenpeace action as a performance test that the French authorities clearly failed.
Strengthening Security of U.S.-Origin SSNM Abroad
The large and growing disparity between the level of protection provided for US-origin SSNM at home and abroad warrants action to ensure that a uniformly high standard of protection is applied for all US-origin SNM at all locations. However, the options for strengthening controls over materials previously exported are limited. The prospects are better for increasing security over future SSNM exports, if the United States has the political will to do so.
The United States is bound by the language on physical protection in the agreements for cooperation currently in force, and it cannot act to augment the standards as articulated in any agreement until the agreement expires and is renegotiated. However, it is understood in those agreements that the physical protection standard that will be applied will reflect the current revision of INFCIRC/225; consequently, NRC revises 10 CFR § 110.44 accordingly when a new revision of INFCIRC/225 is approved.[10] Thus if the international community were to move quickly to develop and approve a fifth revision of INFCIRC/225, physical protection requirements for countries with agreements for cooperation with the United States would have to be increased. Such a revision should include, at a minimum, a requirement that a design basis threat comparable to the DOE 2003 DBT be developed, that Category I facilities be defended by permanent, armed response forces with tactical training and automatic weapons, and that the facilities' defenses be periodically tested through force-on-force exercises, utilizing adversary teams with the full capabilities of the DBT. Countries that are unable or unwilling to comply with the new requirements should be made to understand that their right to possess U.S.-origin SSNM will be lost.
Given the lack of momentum in revising the Convention on Physical Protection, it is highly unlikely that a major overhaul of INFCIRC/225 will take place on an expedited schedule. And even if it did, the United States would still be handicapped in its efforts to verify that the augmented security procedures were implemented appropriately and effectively by its lack of authority to conduct detailed inspections in foreign countries. Only through other channels — perhaps military or intelligence-based, is it likely that the United States could receive the assurances it needs to have confidence that other countries are capable of protecting U.S.-origin SSNM against post-9/11 threats. The Proliferation Security Initiative (PSI) provides a model for international cooperation that reflects "the need for a more dynamic and active approach to the global proliferation problem."[11]
Another option available to the United States is to declare that adherence to INFCIRC/225/Rev. 4 no longer provides adequate physical protection for US-origin SSNM in the current threat environment, and hence that SSNM exports to countries that merely met and did not exceed INFCIRC/225/Rev. 4 standards are to be considered "inimical to the common defense and security." Such a determination would allow the NRC to waive 10 CFR § 110.44 and impose additional security conditions on any export licenses. However, the NRC and the other agencies responsible for making these determinations under the AEA have already shown an unwillingness to take such steps with respect to the DOE plutonium export license to France discussed earlier.
Security of SSNM at NRC-Licensed Facilities
Although the United States has a more highly developed regulatory infrastructure for physical protection of SSNM than many other countries, serious deficiencies exist within the United States as well. This is particularly true for SSNM at NRC-licensed facilities. In some cases, the transfer of SSNM from DOE facilities to NRC-licensed facilities increases its vulnerability to theft.
For example, NRC regulations exempt research reactors from Category I physical protection requirements, no matter how much HEU they possess. This means that research reactors possessing Category I quantities of HEU do not have to meet the NRC Category I design basis threat or conduct annual force-on-force exercises to test the protective strategy.[12] The carelessness with which NRC oversees research reactors is apparent in a recent admission that the MIT research reactor (MITR), a lightly guarded facility on an urban university campus, exceeded its licensed limit of 29 kg of HEU because it continued to receive shipments of fresh HEU, even though it had been unable to ship any spent HEU fuel off-site (which is considered to be SSNM because it is not self-protecting) since the 9/11 attacks. The MITR operators blamed the occurrence on the "lack of a requirement to document the impact of each impending fuel shipment on the possession limit."[13]
Another example of a deficiency in NRC's physical protection program is its approach to approving the security arrangements for the proposed storage of 80 kilograms of weapon-grade plutonium contained in four MOX lead test assemblies (LTAs) at Duke Energy's Catawba plant. The NRC Commissioners have ruled that the pre-9/11 DBT for theft of Category I quantities of plutonium is the applicable standard at this facility, even though NRC issued revised post-9/11 DBTs in 2003 for the two US facilities that currently possess Category I SSNM. Also, the NRC Staff has signaled its willingness to grant a request by Duke Energy for an exemption from certain Category I requirements, including the requirement for a specially trained and equipped Tactical Response Team, accepting Duke's argument that "the current security contingency procedures with the existing security force can effectively respond" to an intruder attempting theft of MOX fuel from the site.[14] In a supplement to the MOX LTA Safety Evaluation, the NRC Staff stated that it "found that the MOX material, while meeting the criteria of a formula quantity, is not attractive to potential adversaries due to its low plutonium concentration, composition and form (size and weight)" and that "a large quantity of MOX fuel and an elaborate extraction process would be required to accumulate enough material for use in an improvised nuclear device or weapon."[15]
The NRC staff's assertion that MOX assemblies require less protection than separated plutonium because MOX is "not attractive" and hard to process into a weapon is inconsistent with international guidance. The IAEA considers MOX fuel to be "unirradiated direct-use material," with a conversion time to weapons use of 1-3 weeks. And INFCIRC/225/Rev. 4 recommends that Category I quantities of plutonium be protected to the same level, no matter what the physical form. This is a prudent policy, since although the form of MOX fuel may reduce the risk of covert diversion scenarios, it may not pose a significant impediment in some overt attack scenarios. If NRC grants the security exemption for MOX storage, it would actually weaken US standards to a level below international standards, undermining attempts to strengthen physical protection worldwide.
Conclusions
The interest of the United States in ensuring that US-origin SSNM in other countries is secure from theft must take precedence over concerns about national sovereignty. Many facilities where US-origin SSNM is or will be stored, both home and abroad, lack credible post-9/11 security standards. Until immediate and effective action is taken to remedy this situation, the risk that this material will someday be used in a nuclear terrorist attack against the United States will remain unacceptably high. The United States should explore new mechanisms to bolster security worldwide.
References
1. G. Bunn, "U.S. Standards for Protecting Weapon-Usable Fissile Material Compared to International Standards," The Nonproliferation Review, Fall 1998, pp. 137-143. (Although this paper was based on consideration of INFCIRC/225 (Rev. 3), its analysis is generally applicable to INFCIRC/225/Rev. 4 as well.)
2. US General Accounting Office (GAO), Obstacles to U.S. Ability to Control and Track Weapons-Grade Uranium Supplied Abroad," GAO/ID-82-21, August 2, 1282, p. 21.
3. US GAO, Nuclear Security: DOE Needs to Resolve Significant Issues Before It Fully Meets the New Design Basis Threat, GAO-04-623, April 2004.
4. Government of Canada, Nuclear Safety and Control Act, Nuclear Security Regulations, 31 May 2000, Canada Gazette Part II, Vol. 134, No. 13., June 21, 2000, pp. 1254-1271.
5. Government of Canada, Regulations Amending the Nuclear Security Regulations, Regulatory Impact Analysis Statement, Canada Gazette Part I, October 25, 2003, pp. 3375-3399.
6. Ibid, p. 3378.
7. D. Flory and J. Jalouneix, "The French Touch in the Field of Fundamental Security Principles," Proceedings of the 42nd INMM Annual Meeting, Indian Wells, CA, July 2001.
8. J. Jalouneix et al.," Impact of the Events of Sept. 11, 2001 On the Physical Protection of Nuclear Facilities in France," Proceedings of the 43rd INMM Annual Meeting, Phoenix, AZ, July 2003.
9. Request for Hearing and Petition to Intervene by Greenpeace International, Charleston Peace and Blue Ridge Environmental Defense League, NRC Docket No. 110-540, November 26, 2003, Attachment 1.
10. See, e.g. Federal Register, 65 FR 70291, November 22, 2000.
11. US State Department, "Proliferation Security Initiative: Frequently Asked Questions," May 24, 2004.
12. E. Lyman and A. Kuperman, "A Reevaluation of Physical Protection Standards for Irradiated HEU Fuel," 24th International Meeting on Reduced Enrichment for Research and Test Reactors (RERTR), Bariloche, Argentina, November 3-8, 2002.
13. MIT Nuclear Reactor Laboratory, "Reportable Nuclear Occurrence 50-20/2004-1, Exceeding U-235 Possession Limit in R-37 License, Paragraph 2.B-(2)," letter to NRC, May 20, 2004.
14. See US NRC, Memorandum and Order (Ruling on Security-Related Contentions), Redacted Public Version, LB-04-10, May 28, 2004, p. 51.
15. US NRC, Supplement 1 to Safety Evaluation Security Plan for MOX Fuel (Non-Safeguards Version), May 5, 2004.
