Attacking the “root crown” of 10 CFR 810 nuclear power plant export controls

Bottom line up front. Atomic fuel utilization facilities should not be subjected to the export control regime that is supposed to be focused on special nuclear materials production facilities. Instead, utilization facility exports should be subjected to rules similar to those that apply to other advanced technology exports like aircraft, computers, and communications equipment.

The 1974 test of an atomic explosive device in India instigated the development of a nuclear power plant export regime. That event had something in common with the 1876 Philadelphia Continental Exposition; it introduced an invasion that has damaged an important part of America. In the case of the Continental Exposition, the invasion came from a plant called kudzu that has useful qualities when living in its native lands, but in the US Southeast has become almost a curse word.

In the case of the test explosion, a widening export transaction control regime codified by 10 CFR 810 has choked much of the life out of the American nuclear power plant and related equipment export business. Before the Indian explosion, American companies dominated the field. Now they struggle to survive and it is not just because of recent political battles over the Ex-Im Bank.

Supposedly aimed at slowing weapons proliferation

The export control expansion has been justified in the name of slowing the proliferation of nuclear weapons.

It was hard for me to believe it when I recently learned that the Secretary of Energy has to personally sign off on many international nuclear power plant equipment sales and atomic technology assistance efforts, even when they are made with certain countries that have an existing bilateral agreement. The approval process includes required review by three additional cabinet level agencies plus the Nuclear Regulatory Commission.

The sales agreements are required to contains “terms and conditions” that should be insulting to most sovereign nations.

American companies have a huge challenge in getting approval for any person who is not a U.S. citizen to work in any aspect of nuclear power plant related manufacturing, plant operations, or physical security.

Aside: My research in this area helped me to understand the plight of a talented young lady that I met when giving a talk at Virginia Commonwealth University. She was the president of the school chapter of the American Nuclear Society, and had done very well in her nuclear engineering studies. She was, however, struggling to find a job and eventually ended up starting her engineering career at a job that has nothing to do with nuclear energy. I’ll update this with her home country once I remember it. End Aside.

People involved in education or technical conferences have to be careful not to violate any rules related to “deemed exports.”

Some of the people in the know about recent maneuvers in Congress are relieved that they were able to slow an even more onerous expansion of the regime to cover more types of equipment in a substantially expanded list of countries. That expansion was hidden in the National Defense Authorization Act and would have inserted at least one more agency and required report into the process with special emphasis on Russia and China.

Those two countries represent more than half of current nuclear power plant construction projects and there is little to nothing that they do not already know about the weapons related applications of atomic energy.

Though participants have vociferously informed me that they are working hard to ensure there are still some opportunities to export; I believe many of the people in the trenches have accepted the existence of the regime in its current form and have resorted to annual efforts to cut new growth.

Astute process participants recognize the substantial power vested in the specific individuals involved in moving applications through the process; that knowledge makes them leery about questioning the rules.

10 CFR 810 regime is bureaucratic kudzu

That export regime has a lot in common with kudzu as being the bane of existence for some, even while presenting a reasonably attractive surface appearance.

Kudzu is one of the ultimate invasive species of plants. It grows rapidly as a tangling vine and chokes the life from the trees and shrubs that it covers by stealing vital sunlight. Anyone who has spent any time staring out of a car window while driving on southern roads will have seen the damage that the plant can cause.

It’s often hidden under dense leaves during the summer and looks almost pleasant, but after the first frost, the leaves are gone and the tangled vines hang bare and ugly from the victims.

The people who introduced the plant, which is native to Asia, Southeast Asia and some Pacific islands were, perhaps, well intentioned. They wanted a fast growing plant that could provide shade for an exposition. Some government employees noticed that did a pretty fair job in slowing soil erosion, could be used as cattle feed, and helped to rejuvenate nitrogen depleted soil, so they implemented a program to pay farmers to plant it.

Some observers believe it is a permanent fixture and nearly impossible to kill, but savvy land owners seem to have no trouble keeping it off of their property. They know the secret to controlling kudzu. If you find and destroy the root crown of a plant, the plant dies and will not regenerate. Sometimes it takes a little digging to find that part of the plant; a mature stand has a large tangle of vines and very deep roots.

Even though I am a native southerner and have been saddened for the better part of 50 years as I watched kudzu’s growing dominance of roadside environments, I don’t know very much about the details of what it has destroyed. I know enough to recognize that kudzu has damaging effects, it doesn’t belong in many of its current locations, its territory should be severely limited and it can be killed without as much effort or expense as some believe.

Similar statements can be made about my knowledge of the details of 10 CFR 810 and its underlying bureaucracy.

Finding the equivalent of the root crown of Part 810

After learning enough about the U.S. nuclear export regime as documented in 10 CFR 810 Assistance to Foreign Atomic Energy Activities to realize how much it had in common with kudzu, I decided to learn if it had a “root crown.”

I was motivated to find a way to eliminate the growth-inhibiting effect of needing the personal (with no authority to delegate) approval of the Secretary of Energy to sell even pumps, valves and heat exchangers with a remote connection to the primary system of a nuclear power plant.

If that heavy shade could be cut back, perhaps there would be a better opportunity to breathe life back into the business of producing and selling atomic energy related knowledge and equipment in America.

Knowing a bit about the amazing work being done at universities and national labs already and knowing how many entrepreneurial plans are in play to capture markets with innovative new developments in facilities that use special nuclear material, I understand the opportunities that may be lost if the shade remains in place.

I also care deeply about the global challenge of slowing CO2 emissions and know that many of the countries that can most benefit from American know how have not even started the process of negotiating the required bilateral agreements.

Though I am “just a blogger,” my specialty is language and my hobby is doing historical research about atomic energy developments.

Before 1974, it was obvious to the world that American atomic energy policy included top level support for selling atomic power technology to the world. Not only was it a lucrative business, but “Atoms for Peace” was more than just a marketing phrase.

It was a deeply held philosophical position to use nuclear technology to empower people in an effort to create to a more peaceful state of affairs between groups and nations.

There were, of course, opponents who wanted to impose strict controls and to protect America’s “nuclear secrets,” but they were in a minority. They had little influence in areas where it was obvious that the use of special nuclear materials was peaceful energy production and/or other uses of the unique qualities of radioactive isotopes in industry, medicine, and science.

I knew about the nuclear weapons non-proliferation movement but did not understand why the controls designed to control weapons were being applied to peaceful applications.

It turns out that the non-proliferation crowd believes that the controls of 10 CFR 810 apply to peaceful atomic applications because of the way they interpret paragraph 57.b(2) of the Atomic Energy Act. Here are the exact words of that paragraph (page 28):

b. It shall be unlawful for any person to directly or indirectly engage in the production of any special nuclear material outside of the United States except (1) as specifically authorized under an agreement for cooperation made pursuant to section 123, including a specific authorization in a subsequent arrangement under section 131 of this Act, or (2) upon authorization by the Secretary of Energy after a determination that such activity will not be inimical to the interest of the United States:
(Emphasis added.)

Before 1974, nearly everyone understood that the drafters and approvers of the Atomic Energy Act of 1954 made a distinction between production of special nuclear material and use of special nuclear material. There is a clear separation in the Act between “utilization facilities” and “production facilities”, a specific definition of “produce” and a clear definition of special nuclear material.

u. The term ‘‘produce,’’ when used in relation to special nuclear material, means (1) to manufacture, make, produce, or refine special nuclear material; (2) to separate special nuclear material from other substances in which such material may be contained; or (3) to make or to produce new special nuclear material. (p. 14)
…
aa. The term ‘‘special nuclear material’’ means (1) plutonium, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Commission, pursuant to the provisions of section 51, determines to be special nuclear material, but does not include source material; or (2) any material artifically1 enriched by any of the foregoing, but does not include source material. (p. 15)

Since 1974, however, the non-proliferation crowd has worked diligently to convince people that all nuclear reactors “produce” new special nuclear material because some neutron absorptions occur in fertile isotopes like U-238 or Th-232. Those neutron absorptions result in the gradual accumulation of plutonium or U-233, depending on which fertile isotope absorbs a neutron.

The belief that power reactors “produce” special nuclear material ignores the fact that nuclear fuel rods are “special nuclear material” before they are ever put into a reactor. There is nothing associated with the routine operation or maintenance of a facility that uses that material that turns it into any of the listed isotopes.

Instead, whatever accumulation of listed isotopes occurs simply adds complexity to the already complex mixture of ceramic and metal collectively known as “corium.”

In a conventional light water reactor, the concentration of plutonium after three to six years in the reactor is still about 1% and the overall fissile isotope concentration is less than it was when the fuel was initially installed.

Bottom line again–commercial nuclear fuel is special nuclear material that is used, not produced, in reactors that produce heat for power or other peaceful uses. Utilization facilities are not included in the section of the Atomic Energy Act that requires the special export controls codified in 10 CFR 810.

There are only limited resources available to implement atomic energy export controls. Those scarce resources–by the law of the land–are required to be focused on the important task of controlling the export of materials, knowledge and equipment associated with producing special nuclear materials.

Section 57.b(2) of the Atomic Energy Act requires special control of activities that would provide a head start in a national or nefarious effort to develop nuclear weapons. It was not written with the purpose of effectively preventing most American involvement in the international trade of peaceful atomic energy information and equipment.

In the future, I might get around to explaining why I firmly believe that many of the people involved in the non-proliferation crowd are motivated to do as much as they can to restrict the peaceful use of nuclear energy because they prefer for natural gas, oil and coal to remain as the dominant sources of controllable energy around the world.