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EURATOM and the United States:
Renewing the Agreement for Nuclear Cooperation

Carl E. Behrens
Environment and Natural Resources Policy Division
Warren H. Donnelly, Consultant
Environment and Natural Resources Policy Division

Updated April 26, 1996


IB96001

SUMMARY

The European Atomic Energy Community (EURATOM) is a regional organization established in 1958 to "create conditions necessary for the establishment and growth of nuclear industries." The United States promoted its establishment to benefit sales of U.S. nuclear power reactors and related equipment. fuels and technology in Europe.

The agreement for nuclear cooperation between the United States and EURATOM expired at the end of 1995. On November 29 President Clinton submitted to Congress a new agreement. reached after several years of difficult negotiation.

The new agreement had to lie before the Congress for 90 days of continuous session before taking effect. During the waiting period, the Congress could have disapproved the agreement via a joint resolution. Since the old agreement had lapsed, most exports of U.S. nuclear materials and equipment to EURATOM countries could not be licensed. While a lapse of a few months appeared not to have serious repercussions, U.S. exports could have been adversely affected if the agreement had been turned down by the Congress. However, it did not do so.

The main point of contention in negotiating the new agreement was the recycling of plutonium in commercial nuclear power reactors by Japan and some EURATOM countries, using nuclear fuel that originated in the Ignited States. The Nuclear Non-Proliferation Act (NNPA) of 1978 demands "effective controls by the United States over its exports of nuclear materials and equipment, and nuclear technology." The EURATOM countries, however, did not want to have to seek U.S. consent to reprocess and recycle plutonium. The Clinton Administration offered an advance programmatic approval for recycling U.S.-origin plutonium, but EURATOM remained suspicious. A principle of non-interference in nuclear fuel cycle choices by individual countries, and previsions making suspension of the agreement unlikely, finally made agreement possible.

Opposition to the new agreement focused on the prior approval of European reprocessing plans. The advance consent concept had been pioneered in the early 1980s in agreements with Sweden and Norway, but opposition came to a head in 1987 with a proposed U.S.-Japan agreement. Opponents argued that the NNPA required case-by-case review and approval of such activities, but in March 1988 the Senate voted against that position.

Opponents continued to argue that the advance approval in the proposed EURATOM agreement was contrary to NNPA, especially considering the further concessions about non-interference and suspension. The President's interpretation was that NNPA's requirements were met by the proposed agreement. In the past, the courts have declined to enter into the debate about interpreting NNPA's requirements, declaring it a political question inappropriate for judicial resolution.

On February 28, 1996, the Senate Committee on Government Affairs held a hearing on the proposed agreement, but no resolution regarding it was introduced before the 90-day period elapsed March 10, 1996.

CONTENTS

SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
EURATOM -- What Is It?
The U.S. EURATOM Agreement for Nuclear Cooperation
Negotiating a New Agreement
Agreement Submitted to Congress
Opposition and Congressional Views
Legislation
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
CHRONOLOGY

MOST RECENT DEVELOPMENTS

On November 29, 1995, President Clinton submitted to Congress a new agreement for nuclear cooperation with EURATOM. On March 10, 1996, after lying before the Congress during 90 days of continuous session, the agreement awaited only the formal exchange of diplomatic notes between the parties to take effect. When it does, issuance of licenses for U.S. nuclear exports to EURATOM countries, which had been suspended after the old agreement expired at the end of 1995, may be resumed.

Congress had the option during the 90-day waiting period to disapprove the agreement via a joint resolution, but none was introduced. On February 28, 1996, after almost 80 days had passed, the Senate Government Affairs Committee held a hearing on the proposed agreement, but no farther action was taken.

BACKGROUND AND ANALYSIS

EURATOM -- What Is It?

The European Atomic Energy Community (EURATOM) is an organization of European nations established in 1958 to "create conditions necessary for the establishment and growth of nuclear industries." The United States promoted its establishment to benefit sales of U.S. nuclear power reactors and related equipment, fuels and technology in Europe. EURATOM now has a nuclear technological base rivaling America's. Eight of its 15 member nations have commercial nuclear power plants, and several rely heavily on nuclear power. Nuclear electrical generating capacity in current EURATOM countries was 122,000 megawatts (gross) in 1994, compared with 105,000 megawatts in the United States. (See Table 1.)

Table 1. Nuclear Generating Capacity of EURATOM Countries

Country Capacity
(MWe gross)
Generation
(Percent)
Belgium 5,834 56.8
Finland 2,400 29.5
France 60,124 75.3
Germany 22,470 29.3
Netherlands 539.00 4.9
Spain 7,400 35.0
Sweden 10,318 51.1
UK 12,910 25.8
Total 121,995  

Source: Nuclear Engineering International, June 1995, p. 48.

All EURATOM members are parties to the Nuclear Non-Proliferation Treaty (NPT), and all belong to the International Atomic Energy Agency (IAEA) and accept its international safeguards. All have a highly developed regional safeguards system of their own. Also, EURATOM members and the United States have declared common policies to keep their nuclear exports away from problem states.

The U.S.-EURATOM Agreement for Nuclear Cooperation

The agreement that expired at the end of 1995 was negotiated under Section 123 of the Atomic Energy Act of 1954, as amended, to provide a framework for American nuclear cooperation with Europe.

In 1958 EURATOM agreed to obtain prior U.S. consent for exports of U.S.-origin enriched uranium and plutonium recovered from spent fuel. EURATOM did not agree to give prior U.S. consent rights for retransfer of these materials within the Community. The U.S. statutory controls in effect when the EURATOM agreement was reached were substantially increased in 1978 in the Nuclear Non-Proliferation Act (NNPA). One stated purpose of the Act was to ensure "effective controls by the United States over its exports of nuclear materials and equipment, and nuclear technology" (NNPA Section 3(c)).

NNPA required the President to renegotiate all existing agreements for nuclear cooperation to obtain certain new rights of prior consent for actions abroad involving U.S.- supplied items. In particular, the NNPA required the right of prior U.S. consent for reprocessing or enrichment, or alteration in form or content, or storage of nuclear materials subject to the agreement.

Recognizing EURATOM as a special case, Congress in the NNPA permitted cooperation to continue under the existing agreement provided the President annually made a determination that failure to cooperate would be "seriously prejudicial to the achievement of U.S. non-proliferation objectives or otherwise jeopardize the common defense and security." President Carter made the first such determination in 1980. The last was made by President Clinton on March 9, 1995, and permitted U.S. cooperation with EURATOM to continue through the end of the agreement on December 31, 1995.

Nevertheless, in negotiating a new agreement the differences between the existing agreement and NNPA's requirements were a difficult barrier. Testifying at a hearing of the Senate Committee on Energy and Natural Resources in 1993, Under Secretary of Energy Charles B. Curtis said:

The existing U.S.-EURATOM agreement prohibits our European allies from using U.S.-origin nuclear material or equipment for nuclear weapons or for other military purposes, and it requires that EURATOM safeguards be applied to U.S. origin material in a European country. . . EURATOM nations are required to obtain U.S. consent before transferring U.S. supplied nuclear materials or equipment to a third party outside of the European Community. However, the agreement does not contain any other consent rights and, therefore, differs significantly from other U.S. nuclear cooperation agreements which contain U.S. consent rights over the reprocessing of U.S. origin material .

Missing in the existing EURATOM agreement, he said, were provisions for:

  • Perpetuating IAEA safeguards on U.S.-origin nuclear material after the agreement expires.
  • Applying IAEA full-scope safeguards on all peaceful nuclear activities in the non-nuclear weapons states of the European Community.
  • Explicitly guaranteeing that nuclear material will not be used in any type of nuclear explosive device, not just an atomic weapon.
  • A U.S. right to require the return of U.S.-controlled items in circumstances related to a non-nuclear-weapon state's detonating a nuclear explosive device or terminating or abrogating an agreement for IAEA safeguards.
  • A guarantee of adequate physical security.
  • A U.S. right to approve storage facilities for weapons-usable materials.
  • A U.S. right of prior consent over enrichment, reprocessing and alteration in form or content of certain U.S.-origin nuclear materials.

Negotiating a New Agreement

As specified in the Atomic Energy Act of 1954 as amended (AEA) Section 123a., the agreement was negotiated by the Secretary of State with the technical assistance and concurrence of the Secretary of Energy and in consultation with the Arms Control and Disarmament Agency.

Formal negotiations began in 1992 after several years of on-and-off discussions beginning in 1978, and were completed on July 17, 1995, when the European Union General Affairs Council approved the text of a proposed new agreement.

The central issue in negotiations was the prior consent provisions required by the NNPA, especially the U.S. insistence on prior consent over re-use of U.S.-origin nuclear materials in perpetuity and European insistence on totally objective conditions for revocation of U.S. programmatic consent. The Clinton Administration assured EURATOM that NNPA conditions would be used in a stable, predictable manner, and offered programmatic approval to recover and recycle U.S.-origin plutonium.

EURATOM remained suspicious that a future U.S. Administration or Congress could abrogate such an approval and thereby interfere with French reprocessing of Japanese spent fuel containing U.S.-controlled plutonium. In particular, the French government and its nuclear industry opposed U.S. negotiating goals. They argued that Europe's nuclear industry was as mature as America's, and that its members had undertaken all of the international nonproliferation commitments called for by the United States, including membership in the NPT, adherence to the "stringent" export guidelines of the London Suppliers Group, and application of full-scope safeguards to its nuclear exports to nonnuclear-weapons states.

Largely unspoken during the negotiation was the fact the European countries were no longer as dependent on imports of U.S. materials and services as they had been, while U.S. nuclear industries faced severe losses if prohibited from exporting to Europe. When the first agreement was reached, for instance, enrichment of uranium for commercial power reactors was a U.S. monopoly. Currently two facilities in Europe and Russia's enrichment capacity are available as competition to the U.S. Enrichment Corporation, a government-owned corporation that is seeking privatization. Thus the EURATOM countries were arguably under less pressure to reach an agreement than was the United States. However, failure to reach a U.S.-EURATOM agreement inevitably would have caused some disruption in the European nuclear industry, and would have prevented Japan from continuing to send U.S.-origin spent fuel to France for reprocessing

Considerations such as these finally led to an agreement in July 1995 via a series of "understandings" interpreting the provisions of the agreement. Declarations about the importance of continuity of supply of nuclear materials, and of non-interference in nuclear power fuel cycle choices by individual countries, were important factors. Probably the most important was the interpretation of the conditions under which the agreement could be suspended; the interpretation makes it highly unlikely that suspension would take place.

After the agreement was reached, it was held up by the State Department because EURATOM had not submitted an acceptable list of storage facilities for highly enriched uranium (HEU), plutonium and mixed-oxide (MOX) nuclear fuel which had been promised in July. French and other European officials resisted providing a comprehensive list and instead argued for a narrowly defined list of dedicated storage facilities that would have excluded materials at reactor sites. It was not until October 25 that EURATOM supplied a list that the State Department accepted.

Agreement Submitted to Congress

On November 29, 1995, President Clinton submitted the new U.S.-EURATOM agreement to Congress. In keeping with the NNPA, the submittal was accompanied by the views and recommendations of the Secretary of State, the Secretary of Energy, the Nuclear Regulatory Commission, and the Director of the Arms Control and Disarmament Agency (ACDA). The latter also provided an unclassified Nuclear Proliferation Assessment Statement (NPAS) regarding "the adequacy of safeguards and other control mechanisms and the peaceful use assurances contained in the agreements for cooperation to ensure that any assistance furnished thereunder will not be used to further any military or nuclear explosive purpose."

In his submission, President Clinton approved the agreement and authorized its execution, and made a written determination that "the performance of the proposed agreement will promote, and will not constitute an unreasonable risk to, the common defense and security." The President declared that the agreement meets all the requirements of the law for agreements for peaceful nuclear cooperation. And as a result he was transmitting it without exempting it from any requirement contained in Section 123a. of the Atomic Energy Act.

The new agreement could not take effect until it lay before the Congress for 90 days of continuous session, following the date of submission, and provided that a joint resolution disapproving it did not pass during that period. (Continuity for the purposes of Section 123 of the Atomic Energy Act is broken only by an adjournment of Congress sine die at the end of a Congress, according to Section 130g.(2). Days on which either House is not in session because of an adjournment of more than three days do not count toward the 90-day requirement.) In the meantime, since the existing agreement had lapsed, the Nuclear Regulatory Commission was not able to license exports of U.S. nuclear materials and equipment to EURATOM countries, other than those with which bilateral agreements were in force. Similarly, the Department of Energy was not able to license exports of nuclear technology. On the other hand, EURATOM nuclear exports to the United States were independent of the agreement and could continue.

Effects of an Extended Lapse. While a lapse of a few months did not appear to have serious repercussions, U.S. exports could have been adversely affected if the agreement had been turned down by the Congress. The U.S.-Japan agreement might also have been in trouble, since Japan could not continue to send U.S.- controlled plutonium to Europe for reprocessing.

The General Accounting Office in June 1995 reported that U.S. exports of nuclear materials to EURATOM from 1989 through August 1994 was about $1.1 billion; exports to Japan total about $4 billion. In addition, U.S. enrichment services to EURATOM were about $168 million in fiscal years 1989 through 1993 and $1.6 billion to Japan in the same period.

Opposition and Congressional Views

Opposition to the new agreement focused on the prior approval of European reprocessing plans. The advance consent concept had been pioneered in the early 1980s in agreements with Sweden and Norway, but opposition came to a head in 1987 with a proposed U.S.-Japan agreement, which features an advance programmatic consent for Japan to reprocess spent fuel containing U.S.-controlled plutonium.

Opponents argued that the NNPA required case-by-case review and approval of such activities, on the grounds that otherwise the international community could not be assured of "timely warning" of a possible diversion of nuclear weapons material. The Reagan Administration, however, claimed that advance approval was consistent with the goals of the NNPA and the Congress. In March 1988 the Senate by a vote of 30 to 53 rejected a joint resolution to disapprove the agreement, and the agreement went into effect in July of that year.

Despite the failure to defeat the U.S.-Japan agreement, some players in the nuclear non-proliferation debate continued to argue that the advance approval is contrary to NNPA. The further concessions yielded to France and other EURATOM countries, proclaiming "no interference" in fuel cycle decisions of individual countries and restricting conditions for suspending the agreement, strengthened some opposition. Although President Clinton's submittal statement declares that the EURATOM countries have "impeccable nuclear nonproliferation credentials," Nuclear Control Institute President Paul Leventhal complained that Europeans do not share U.S. nonproliferation objectives. Leventhal cited disagreements over Iran's nuclear weapons program, and EURATOM negotiations to obtain bomb-grade uranium from Russia for European research reactors, as current examples of divergence.

On August 18, 1995, Representative Markey, along with Senators Richard Lugar and William Roth, asked GAO to "assess the extent to which the proposed agreement satisfies the applicable legal requirements for nuclear cooperation agreements" and to determine whether President Clinton should submit it "with a waiver of any of those statutory provisions ' (Nuclear Fuel, August 28, 1995: 8). If the President on submitting the agreement had asked for a waiver of any of the NNPA provisions, Congress would have had to pass a joint resolution approving the agreement before it could take effect. Without a waiver request, the agreement would take effect if Congress fails to pass a joint resolution rejecting it.

On February 28. 1996, the Senate Committee on Governmental Affairs held a hearing on the proposed agreement. In addition to witnesses from the Departments of State and Energy and the Arms Control and Disarmament Agency, who supported the agreement, the Committee heard Victor Rezendes of the General Accounting Office criticize the U.S. system for keeping track of nuclear materials internationally. Sen. John Glenn, ranking Democrat on the Committee, had requested several GAO reports on the deficiencies of the U.S. tracking system, the latest in August 1995. Rezendes did not directly relate the effectiveness of the tracking system to the effective implementation of non-proliferation goals under the proposed EURATOM agreement.

Two days after the hearing GAO released its legal analysis, concluding that the agreement satisfied NNPA. It noted that a 1988 GAO report found the U.S.-Japan agreement's advance consent provision inconsistent with NNPA's provisions, but that in the 8 years since then the Congress had not prohibited or limited the use of advance consents.

Representative Markey stated his disappointment with the GAO finding, disagreeing with "GAO's assessment that the inability or unwillingness of a majority in Congress to insist on strict compliance with the requirements of the NNPA should provide a legal basis for concluding that these requirements no longer exist, or that they somehow can be inferred from the text of the EURATOM agreement" (Nuclear Fuel, March 11, 1996, p. 10).

GAO may have been influenced in its conclusion by the fact that the courts have declined to enter into the debate over interpreting NNPA's requirements. In 1984 opponents of the long-term consents contained in the agreements with Sweden and Norway filed suit to have them declared unlawful. But a Federal district court held the matter to be a political question inappropriate for judicial resolution. (See Cranston v. Reagan, 611 F.Supp. 247 (D.C. D.C. 1985).)

Legislation

No bills relating to the EURATOM agreement were introduced during the 90 days it lay before the 104th Congress.

Statutory provisions relating to the EURATOM agreement appear in the Atomic Energy Act of 1954, especially Section 123, as amended by the Nuclear Non-Proliferation Act of 1978, P.L. 95-242, and by the Export Administration Amendments Act of 1985, Title III, P.L. 99-64 (the "Proxmire Amendment").

CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

U.S. Congress. Senate. Committee on Energy and Natural Resources. Agreement for Cooperation on Peaceful Uses of Atomic Energy between the United States and the European Atomic Energy Community. Hearing, 103rd Cong. 2d sess. 1994, 61 pp. (S. Doe. 103-944)

U.S. Congress. Senate. Joint Committee on Atomic Energy, Subcommittee on Agreements for Cooperation. Proposed amendment to EURATOM cooperation act of 1958. Hearing. 93d Cong. 1st sess. 1973, 57 p.

Congressional Research Service: The U.S.-EURATOM Nuclear Cooperation Agreement. Zachary Davis. CRS Report for Congress. 95-359 ENR. Updated July 12, 1995.

U.S. General Accounting Office. Nuclear Proliferation: Information on Nuclear Exports Controlled by U.S.-EURATOM Agreement. Report to the Committee on Governmental Affairs, U.S. Senate. June 16, 1995, 45 p.

CHRONOLOGY

03-10-96 --- EURATOM agreement completed 90-day review by Congress.

03-01-96 --- GAO report found EURATOM agreement met requirements of Nuclear Non-Proliferation Act (NNPA).

02-28-96--- Senate Government Affairs Committee holds hearing on proposed EURATOM agreement.

12-31-95 --- Expiration of current U.S.-EURATOM agreement for nuclear cooperation.

11-29-95 --- President Clinton submitted the new EURATOM agreement to Congress.

11-07-95 --- U.S. and EURATOM representatives signed a new agreement for nuclear cooperation. A State Department release said the new agreement "satisfies all Nuclear Non-Proliferation Act (NNPA) requirements," and defended the long term programmatic approval of reprocessing spent fuel containing U.S.-origin materials.

08-18-95 --- Representative Edward Markey asked GAO to "assess the extent to which the proposed agreement satisfies the applicable legal requirements for nuclear cooperation agreements" and to determine whether President Clinton should submit it "with a waiver of any of those statutory provisions." (Nuclear Fuel, August 28, 1995: 8)

07-26-95 --- Brussels. The European Commission approved the proposed text of the agreement. (Nuclear Fuel, July 31,95:5)

03-09-95 --- President Clinton transmitted to Congress his waiver until the end of the year of NNPA export conditions in order to continue cooperation with EURATOM.

09-29-94 --- The Senate Committee on Energy and Natural Resources held a hearing on the U.S.-EURATOM agreement, its importance to the United States, and the executive branch's efforts to negotiate a new agreement.

08-19-94 --- A bipartisan coalition of 25 House Members wrote to Secretary of State Christopher and Energy Secretary O'Leary urging them to tighten controls over U.S.-origin, bomb-grade highly enriched uranium (HEU) in EURATOM.

08-05-94 --- The chairmen of two subcommittees of the House Committee on Foreign Affairs wrote to Secretary of State Christopher and Secretary of Energy O'Leary urging them to use the U.S.-EURATOM agreement as a way to establish "meaningful consent rights over U.S. origin weapons-usable material," and calling for negotiations to eliminate excess world stockpiles of fissile materials for civil use.

08-01-94 --- The president of the American Nuclear Society wrote to President Clinton in support of extension of the U.S.-EURATOM agreement, but expressing concerns that "the process of negotiation towards a new agreement is not receiving the urgent priority of the U.S. Administration that it deserves."

06-15-94--- Secretary of State Christopher wrote to EURATOM that the U.S. Congress "would not approve an agreement that waived any of the NNPA requirements." (Nuclear Fuel, Jul. 18, 1994:4)

04-11-94 --- The European Community wrote to Secretary of State Christopher that the United States should simplify negotiations for a new agreement by agreeing to submit it to Congress with a waiver of the consent requirements. (Nuclear Fuel, April 11, 1994: 8)

03-21-88--- The Senate rejected (30-53) S.J.Res. 241 to disapprove the proposed agreement for U.S.-Japanese nuclear cooperation (Congressional Record p. S2625). The agreement included 30-year advanced programmatic approval of Japanese reprocessing and recycle activities. It went into effect July 17 1988.

FOR ADDITIONAL READING

Bengelsdorf, Harold D. The U.S.-EURATOM Agreement: Avoiding a Breakdown in Cooperation. Washington, D.C.: The Atlantic Council, July 22, 1994. 7 p.

Berkhout, Frans and Walker, William. "Atlantic impasse." Bulletin of the Atomic Scientists, September/October 1994: 15-17.

Fischer, David. "EURASIATOM." The Nonproliferation Review, Spring-Summer 1994: 54-69.

Heimreich, Jonathan E. "The United States and the formation of EURATOM." Diplomatic History, v. 15, summer 1991: 387-410.

Leventhal, Paul L. and Greenberg, Eldon V.C. Expiration and Extension of the U.S.-EURATOM Agreements for Nuclear Cooperation. Washington, D.C.: The Nuclear Control Institute, December 1993. 17 p.

Mederios, Evan S. "United States and EURATOM Strike New 35-Year Accord." Arms Control Today, September 1995: 30.